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Chiranjan Jadavji Padia Vs. Bhupesh Chandra Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 203 of 1978
Judge
Reported inAIR1979Cal289,83CWN393
ActsCode of Civil Procedure (CPC) , 1908 - Section 9; ;Specific Relief Act, 1963 - Section 39
AppellantChiranjan Jadavji Padia
RespondentBhupesh Chandra Dutt and ors.
Appellant AdvocateDipankar Ghosh, ;P.K. Roy and ;P.N. Ghosh, Advs.
Respondent AdvocateH.M. Dutta and ;S.K. Roychoudhury, Advs. (for Nos. 1, 3, 7 and 10), ;Bimal Chatterjee, Adv. (for Nos. 5 and 9) and ;Nirmal Roy Choudhury, Adv.
Cases ReferredFaramus v. Film Artistes
Excerpt:
- ordersabyasachi mukharji, j.1. this suit has been instituted by the plaintiff who carries on business under the name and style of chiranjan & co. as the foreign exchange and finance broker. the plaintiff states that the plaintiff in his said firm name is a member of the exchange and bullion brokers' association. calcutta, being the defendant no. 10 herein. there are several defendants in this suit namely, eleven of which defendants nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, are said to be members of the association defendant no. 10 exchange and bullion brokers' association which has its office at no. 23a, nelaji subhas road, calcutta. defendant no. 11 is the foreign exchange dealers' association of india hrivmg its office at no. 4, netaji suhhas road, calcutta. originally the defendant no. 3 was.....
Judgment:
ORDER

Sabyasachi Mukharji, J.

1. This suit has been instituted by the plaintiff who carries on business under the name and style of Chiranjan & Co. as the Foreign Exchange and Finance Broker. The plaintiff states that the plaintiff in his said firm name is a member of the Exchange and Bullion Brokers' Association. Calcutta, being the defendant No. 10 herein. There are several defendants in this suit namely, eleven of which defendants Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, are said to be members of the Association defendant No. 10 Exchange and Bullion Brokers' Association which has its office at No. 23A, Nelaji Subhas Road, Calcutta. Defendant No. 11 is the Foreign Exchange Dealers' Association of India hrivmg its office at No. 4, Netaji Suhhas Road, Calcutta. Originally the defendant No. 3 was sued in his capacity only as the Secretary of the defendant No. 10 Association. By an order made by me during the course of the hearing of this suit on the application of the plaintiff on the 20th of June, 1978 the said defendant No. 3 has been sued as Secretary of the said Association for self and on behalf of the members of the Exchange Brokers' Association. By the aforesaid order referred to hereinbefore I had also granted the plaintiff leae to include a prayer for leave under Order 1. Rule 8 of the Civil P. C. In this suit the plaintiff has claimed, inter alia, the declaration that the purported decision of the Executive Committee nf the defendant No. 10 Association rejecting the application of the plaintiff for taking in and admitting one Sri S. K. Chopra as a partner in the plaintiff's said business of Chiranjan & Co. is null and void, illegal and not binding on the plaintiff and should be cancelled and/or set aside. The plaintiff has, further, asked for a mandatory injunction directing the members of the said Association to set aside, recall and withdraw the said decision as communicated by the letter mentioned in the plaint dated 8th of March, 1978. The plaintiff has also claimed a mandatory injunction directing the defendants Nos. 1 to 10 to forthwith accord sanction to enable the plaintiff to take in or admit the said Sri S K. Chopra as a partner of the plaintiff's business of Chiranjan & Co. The plaintiff has also asked for a mandatory injunction directing the defendants Nos. 1 to 10 and each of them, their successors in office to forthwith accord recommendation of Sri S. K. Chopra as the authorised person to act and call on the banks on behalf of the plaintiff's firm Chiranjan & Co. The plaintiff has also sought a perpetual injunction restraining defendants Nos. 1 to 10 and each of them, their successors in office from acting upon the said purported decision of the Executive Committee of the Exchange and Bullion Brokers' Association as communicated to the plaintiff by the said letter dated 8th of March. 1978. The plaintiff has also sought perpetual injunction restraining the defendants Nos. 1 to 10 from hindering or interferring with the business of the plaintiff In any manner and there are certain other incidental reliefs claimed by the plaintiff. In order to appreciate the claim of the plaintiff it is necessary to refer to certain facts. The defendant No. 10 is an Association of Foreign Exchange and Finance Brokers belonging to Calcutta. In conducting its affairs, the defendant Association and its members are governed by the rules and regulations of the said Association. One of the aims and objects of the said Association is to work as a body for the benefit and protection of its members and to watch as a safeguard the interests of its members both individually and collectively. Rule 5 of the rules of the Association indicates what will be the composition of the Executive Committee. Rule 13 of the rules indicates that all decisions of the Executive Committee shall be taken by majority vote. In case of any equality of votes the Chairman shall have the casting vote in addition to his own vote. Rule 20 is as follows :--

'20. A member can take assistant or partner with the previous sanction of the Executive Committee of the Association but the number of hands working in a firm shall be limited to the seats held by such member. The Committee shall have the right to reject any name and such decision shall be final.' Rule 21 indicates the entrance fees to be sent, along with the application and further stipulates that if for any reason the Executive Committee does not approve the application of admission of any new assistant or partner the entrance fee would be refunded. Rules 23 and 24 are to the following effect :--

'23. The total number of seats in the Association which are shall not be increased but members shall be allowed to transfer seat or seats between themselves. In case of any kind of transfer of a seat a fee of Rs. 250/- shall be paid by the transferee to the Association.

24. Previous sanction of the Association shall be necessary in all cases of taking assistant, partners, sale, purchase, amalgamation and transfer of seats'

2. The defendant No. 10 Association is the Association recognised by the defendant. No. 11, the Foreign Exchange Dealers' Association of India. The said defendant No. 11 has been formed and was constituted of several banks being the authorised dealers in Foreign Exchange as the members thereof. The defendant No. 11 and its members are governed by its own rules and regulations. Rule 3 thereof deals with the business through Exchange Brokers and one of the important conditions of the Rule 3 of the said rules of the defendant No. 11 stipulates that when banks make contracts in respect of foreign exchange transactions such contracts shall oniy be made through the exchange brokers and be paid only to accredited exchange brokers. No direct business is permitted. The rule further recommends certain Associations in Calcutta, Bombay and Madras, members of which are only recognised as accredited brokers and the defendant No. 10 is the recognised Association in so far as Calcutta is concerned. The other portion of the said rule is not relevant for our present purpose.

3. The plaintiff was originally a partner of Messrs. Lakhi Narain Misra and Co., of 12A, Netaji Subhas Road, Calcutta which was an original member of the defendant No. 10 Association. Under the Instrument dated 30th of March, 1968 the name of the partnership was changed to 'Padia & Co.' of which the plaintiff continued to be a partner until the time mentioned hereinafter. The said firm of Padia & Co., had 9 seats having the entitlement to act through 9 several authorised persons. Under the terms and conditions recorded in the Instrument dated 1st of Aug., 1977 duly executed by all the 9 persons constituting the said partnership, the plaintiff retired from the said firm with effect from 1st of April, 1977 having been allotted 3 seats out of 9 seats thereby acquiring the entitlement to do business as broker in Foreign Exchange through 3 authorised persons. The plaintiff further states that the factum of the said retirement of the plaintiff from the said firm of Padia & Co., which was and is a member of the defendant No. 10 Association was brought to the notice of the said Association by a letter dated 1st of Aug., 1977 addressed to the Hony. Secretary of the said Association. It is further the case of the plaintiff and it is undisputed in this case that the defendant No. 10 recognised the plaintiff and its said firm as a separate and distinct member of the defendant No. 10 Association. The said recognition was intimated by or on behalf of the defendant No. 10 Association to that effect to the plaintiff by a letter dated 26th of Aug., 1977 and also to the Chairman of the defendant No. 11 Association by a separate letter of that date. A.s required by the rules of the defendant No. 11 Association the plaintiff duly deposited with the Chartered Bank a sum of Rs. 10,000/- on 29th of Aug., 1977 against appropriate receipt. The said deposit is required to be made by the accredited brokers in Calcutta recognised by the defendant No. 10 Association under Clause II of Rule 3 of the defendant No. 11 Association. The name of the plaintiff was duly circulated amongst its members and it was further intimated that the plaintiff had by virtue of its position 3 seats allotted to him. According to the plaintiff the plaintiff required some assistance and therefore sought to take an authorised person by the name of one Ashim Roy Chowdhury. Formal approval of the defendant No. 10 Association was sought but was refused. The plaintiff has set out all the various steps taken for inclusion of said Sri Ashim Roy Chowdhury as an assistant in the firm of the plaintiff. But for the present purpose it is not necessary to refer to the same in detail because the plaintiff is not insisting on his right to have said Ashim Roy Chowdhury as an assistant any longer. Thereupon, it is the case of the plaintiff that the plaintiff wanted and conceived the idea of taking one Sri S. K. Chopra formerly of Normans' Ross & Co., a foreign exchange broker a member of the Calcutta Exchange Brokers' Association recognised by the defendant No. 11, as a partner in the said firm of the plaintiff and the plaintiff by a letter dated 16th of Feb., 1978 duly applied to that effect for recognition of said S. K. Chopra as an authorised person and forwarded therewith a cheque for Rs. 100/- being the requisite entrance fee. The plaintiff also forwarded a no objection certificate dated 17th of Feb., 1978 from the Normans' Ross & Co. But the defendant No. 10 by its letter dated 8th of March, 1978 communicated to the plaintiff that both the applications of the plaintiff namely, the application to take in Ashim Roy Chowdhury as an assistant as well as to take Sri S. K. Chopra as a partner of the plaintiff firm have been rejected. The plaintiff contends, the said action is mala fide and wrongful and the said action has been taken without assigning any reason whatsoever. The plaintiff further asserts that there is no plausible reason whatsoever for the refusal of the desired recognition and/or sanction. The plaintiff asserts that at the same sitting of the Executive Committee held on the 4th of March, 1978 the applications of Messrs. Poddar Saraogi & Co. and Shew-bux Bagri & Co. for recognition of authorised persons have been sanctioned. According to the plaintiff the decision of the Executive Committee was not in good faith and was taken arbitrarily and there could not be any plausible ground for rejection. The plaintiff asserts that by the wrongful conduct the plaintiff had been deprived of the assistance which the plaintiff is entitled to by the fact that the plaintiff has 3 seats and the choice of nomination of the authorised person of the firm rested with the plaintiff and by the wrongful and arbitrary conduct of the defendant No. 10 there has been interference with the business of the plaintiff. In those circumstances, the plaintiff has sought the reliefs mentioned hereinbefore. Originally a written statement had been filed on behalf of the defendants Nos. 1, 3, 7 and 10 and another written statement was filed on behalf of the defendants Nos. 5, 6 and 9 and the third one on behalf of the defendant No. 4. More or less identical points of defence had been taken in all these written statements. The original contention on behalf of the defendants was, that the suit as framed was not maintainable. Defendants have further asserted that the defendant No. 10 Association and its members were nf the view that the attempt of the plaintiff was to induct some persons of Batliboi & Karam of Bombay and induction of such persons would unfavourably affect the interest of the brokers who are doing foreign exchange brokerage business in Calcutta and, therefore in the best interest of the members of the Association, and for the protection of their legitimate rights the Executive Committee after considering all aspects of the matter had rejected the said applications made by the plaintiff. The defendants, further, asserted that the enquiry had revealed that by bringing in said S. K. Chopra the plaintiff had contemplated induction of the proprietor or partners of Batliboi & Karani in an indirect way and therefore the defendants acting in good faith had rejected the application of the plaintiff. It was, further, asserted that plaintiff had no cause for complaint and all applications were duly considered and the plaintiff had no absolute right to claim the right to induct either a partner or an assistant. The relevant claims by the plaintiff, which were denied by the defendants were not open to the plaintiff and as such the plaintiff has no cause of action. Furthermore, the defendant No. 10 being an unregistered association no suit was maintainable against the defendants. It was further asserted that the defendant No. 4 was improperly impleaded; Asoke Kumar Roy was not a member of the defendant No. 10 but one Ashim Kumar Roy was a member.

4. On the said pleadings the following Issues were settled :--

1 (a). Has the defendant Association by its letter dated 8th March, 1978 wrongfully and mala fide declined to recognise S. K. Chopra as the authorised person of the plaintiff as alleged in para 15 of the plaint ?

1 (b). Was the defendant Association obliged to assign reasons in rejecting the name of the said S. K. Chopra ?

1 (c). Has the derision of the Executive Committee of the defendant Association in rejecting the said name not been taken in good faith Was the said decision discriminatory and violative of the principles of natural justice as alleged in para 15 of the plaint ?

2 (a). Is the defendant Association not entitled to reject the nomination of the authorised person as alleged in para 16 of the plaint ?

2 (b). Is the defendant Association under an existing obligation to the plaintiff to sanction the application of the plaintiff nominating S. K. Chopra as the authorised person ?

3. Has the plaintiff any cause of action against the defendants ?

4. Is the suit maintainable ?

5. To what relief, if any, the plaintiff is entitled ?

5. As I have mentioned before one of the main points originally taken was that the suit against defendant No. 10 was not maintainable and was a nullity and no reliefs could be claimed or granted. Thereupon, during the course of the hearing of the argument the plaintiff made an application for amendment of the plaint and I granted the said amendment by the order dated 20th of June, 1978. The defendant No. 10 has now been properly sued and after the said amendment it is not necessary to discuss the controversy as to whether the suit as framed against defendant No. 10 was properly framed originally and as such the same was a nullity and no relief could have been granted against the other defendants.

6. It has to be emphasised that the defendants in their written statement highlighted the fact that Ashim Roy Chowdhury was connected with M. Murarka & Co., a sister concern of Messrs. Batliboi & Karani. The defendants have, further, stated that theelder brother of said Ashim Roy Chowdhury was an employee of M. Murarka & Co., and had considerable influence in the said company. According to the defendants the said firm of Batliboi & Karani did not earn a good reputation in Calcutta foreign exchange market. The said firm, it was alleged by the defendants had a Teleprinter Communication with Bombay through which they used to transmit informations about the Calcutta market and thereby adversely and prejudicially affect the Calcutta market. It is the allegation of the defendants that Batliboi & Karani had tried their best to push themselves by any means into the Calcutta market and according to the defendants negotiations have gone on between the said firm of Batliboi & Karani and the plaintiff for the transfer of the plaintiff's business to the said firm of Messrs. Batliboi & Karani. The defendants have alleged that such negotiations for transfer took place even before the division of Padia & Co. The defendants' allegation was that Batliboi & Karani by installation of teleprinter between Calcutta and Bombay and passing news of the markets had made attempts to prejudice arid unstabilise the market and as a result thereof the interests of the merchants and brokers in Calcutta had been seriously prejudiced and they had boycotted the said Batliboi & Karani. It. is this apprehension based on enquiries that had led according to the defendants to reject the application of the plaintiff to take Ashim Roy Chowdhurv as an assistant and induct Sri S. K. Chopra as a partner. It has been further suggested on behalf of the defendants in the written statement that at the time of the division of Padia & Co. there was a representation that there would be no induction of any partner or assistant as was purported to be done bv the induction of S. K. Chopra. As I have mentioned before one of the main points urged at the time of the hearing of ths suit was that the suit was not maintainable as framed and therefore I had allowed leave to the plaintiff to institute the suit under O, 1, R, 8 of the Civil P. C. and pursuant to such leave advertisements had bpen duly published as required by the provisions of law and in pursuance to that advertisement two other members of the defendant No. 10 namely, Kartick Chandra Dhar & Co. and Bhanumal & Co. sought leave to intervene in the matter. Such leave was duly granted and they have filed writtenstatements thereafter. In the written statements filed by the said added defendants more or less identical points have been reiterated by the said added defendants.

7. I have set out hereinbefore the Issues as finally settled in this case. Issues Nos. 3 & 4 relate to the fact whether plaintiff has any cause of action against the defendants and whether the suit is maintainable. Now on these two issues one of the main arguments or indeed the solitary argument about the maintainability of the suit was that the defendant No. 10 being an unregistered association the suit as framed was not maintainable and was a nullity. Therefore, no relief could be granted in this suit. It was, further, sought to be elicited from the evidence of the plaintiff in answers to questions 100-102 that the defendant No. 4 Asoke Kumar Roy was not a member of the Committee of the defendant No. 10 at any point of time. It was, further, suggested to him that it was Ajit Kumar Roy who was a member of the Executive Committee and not Ashoke Kumar Roy. To this the plaintiff stated in answer to question 102 that that might be the correct position and he was not sure. But after the amendment that I have directed by the order dated 20th of June, 1978 granting leave under O 1, Rule 8 of the Civil P. C. and permitting Shyam Sundar Lakhotia the defendant No. 3 to be sued for self and on behalf of the members of the defendant No. 10 association, these objections, in my opinion, are no longer sustainable. Indeed though such amend-ment was resisted, after the amendment was allowed no argument was advanced in support of this objection. I must, however, note that in respect of the controversy as to whether the suit as originally framed was maintainable or not from the Bar the following decisions were cited. Rajendra Nath v. R. C. Turf Club, : AIR1964Cal57 ; Kodia Groundar v. Velandi Groundar, : AIR1955Mad281 (FB); G. I. P. Rly., Senior Institute v. Mohit Kumar, AIR 1954 Nag 29; Board of Directors v. R. H. Niblett, : AIR1957All219 . For the reasons mentioned hereinbefore it is however, not necessary for me to discuss the aforesaid decisions and after the amendment, I must, therefore, answer the Issue No. 4 in the affirmative and in favour of the plaintiff.

8. So far as the Issue No. 3 is concerned, it has two separate aspects namely, whether in respect of the actiontaken by an association like the defendant No. 10 there could be any cause of action at all; that aspect will require further examination and consideration. But so far as that issue challenges the cause of action against the defendants if otherwise sustainable then the same must be answered in the affirmative and in favour of the plaintiff.

9. So far as Issues Nos. 1 & 2 are concerned these mainly centred round the question whether the letter of the defendant No. 10 dated 8th of March. 1978 was wrongful or mala fide or whether the defendant No. 10 was obliged to assign any reason for rejecting the name of Sri S. K. Chopra and whether the decision of the defendant No. 10 was taken in good faith and whether there was any scope for the application of the principles of natural justice in this case. It is also necessary to consider whether there was any obligation on the part of the defendant No. 10 Association to sanction, in the facts and in the circumstances of this case, the application of the plaintiff in nominating Sri S. K. Chopra as the authorised person as a partner on the said firm.

10. In this case both oral and documentary evidence have been tendered. On behalf of the plaintiff Surendra Kumar Chopra has given evidence and plaintiff himself has also deposed. The brief of documents and correspondence was tendered and has been marked as Ext. A and Ext. B being documents except the document marked serial No. 1 disclosed by the defendant No. 10 have also been tendered and these have been marked as Ext. B and Ext. I is a joint affidavit of service of Prabir Kumar Dey and the plaintiff affirmed on 31st of May, 1978. So far as Ext. I is concerned it is no longer of much relevance because of the amendment referred to hereinbefore. It is necessary, therefore, briefly to discuss the documentary evidence before I embark upon discussing the oral evidence in this case. Items 1 and 2 are the rules of the Foreign Exchange Dealers' Association and Rules of Foreign Exchange and Bullion Brokers' Association. Item 3 in Ex. A is the letter dated 1st of Aug., 1977. In that letter Padia & Co. had informed the respondent No. 10 Association about the retirement of C. J. Padia from the said firm and also intimated that out of 9 seats in the Association belonging to the firm Padia & Co., 3 seats should be transferred in the name of C. J. Padia who would continue to do his separate business in the name and style of Chiranjan & Co. This position was accepted by the defendant No. 10 Association by a letter written to the defendant No. 11 as would be apparent from P, D. 4 which is at page 11 in Ext. A. By letter dated 26th of Aug., 1977 in Ext. A the plaintiff was intimated that this claim to do business in his own name with 3 seats has been accepted. The said letter is important and contained, inter alia, as follows : --

'Your application dated 1st Aug., 1977 jointly with M/s. Padia & Co. was received by us intimating your retirement from Partnership of Padia & Co. Your request for transfer of three seats in your name to enable you to do business separately in the name of Chiranjan & Co. has been duly approved and accepted by the Executive Committee meeting held on 23rd Aug.. 1977 after scrutiny of the Deed of Retirement.

We have duly intimated the Chairman, F. E. D. A. to accept the Security Deposit of Rs. 10,000/- to enable you to commence business at the earliest. For your information a copy of the letter is enclosed herewith.

As President of our Association I extend to you my best wishes.'

Thereafter, the other documents in Ext. A relate to the application of the plaintiff for taking Sri Ashim Roy Chowdhury as an assistant and a calling member of the firm. It is not necessary to rffer to the same as the plaintiff is no longer insisting on his right to have Ashim Roy Chowdhury as an assistant. Thereafter, on the 10th of Oct., 1977 the plaintiff was informed by the defendant No. 10 that certain complaint had been received against the plaintiff and the plaintiff was requested to attend the meeting to be held on the 11th of Oct., 1977. What happened can best be narrated in plaintiff's version in the letter which is P. D. 9 dated 18th of Oct.. 1977 in Ext. A. The said letter contained inter alia, as follows :--

'While the said meeting was in progress, our Mr. C. J. Padia, was shown a letter alleged to have been signed by a good number of members. The said letter contains as an allegation that certain misrepresentations were made by him. We deny that there was any misrepresentation whatsoever on our part. Thereafter some of the members alleged that there was a secret agreement between ourselves and Messrs. Batliwala & Karani of Bombay. No particulars of the said alleged agreement were given neither was the source of information regarding the said secret agreement disclosed. We were really shocked to learn of the said allegation which was based on rumours and was possibly only a brainwave of some of the members who would not like others to survive and operate. It is really strange in view of the recommendation of F. E. D. A. I. some of them should still continue with their pasttime of making false and malicious allegations against others.

We are asked to give an undertaking that we shall not associate ourselves with the said Messrs. Batliwala and Karani or any other outside broking firm. We are afraid that such an undertaking is not at all essential nor is it within the competence and power of the Committee to insist upon an undertaking for the reason that if we are not acting within the rules of the association, then we are otherwise to be penalised and if there is no rule which prevents us from associating ourselves with an outside broking firm then the Committee cannot impose on us any such restriction. This bv itself shows the malice on the part of some of the members. Since we are not person who would act in contravention of the rules and regulations of the Association and are not those who would like to enter into unnecessarv correspondence inasmuch as we have no time in involving ourselves in a void correspondence, we can only assure that if it is against the rules and regulations of the Association, we shall not associate ourselves with any outside broking firm but if it be within the rules, then we reserve out right to associate ourselves with any broking firm of our choice. Finally in case you insist on taking such an undertaking from us, we hereby give it but we expect this applies to all members and that you will be obtaining in due course similar undertaking from all other members of the Association as well.

Thanking you,

Yours faithfully,

UNDERTAKING

We hereby give our solemn declaration that M/s. Batliwala & Karani or any partner of the said firm or any relative of a Partner of M/s. Batliwala & Karani or any other outside Foreign Exchange broking firm has no connection or interest whatsoever directly or indirectly in our firm. We also give guarantee that we shall not enter into any such connection with them or allow any outside Foreign Exchange broking firm interest in our firm in future as well. The Association will be free to take under the rules any action they like if we are found to breach the above declaration and guarantee in their best discretion.' On the 5th of Nov., the Secretary of the defendant No. 10 communicated to the plaintiff a resolution at a meeting held on the 5th of Nov., 1977. The said resolution was as follows :--

'It was also resolved to send a request letter to M/s. Chiranjan & Co., and copy to M/s. Padia & Co. to appreciate the new situation and to try to come back to their old position before the retirement of Mr. C. P. Padia from M/s. Padia & Co., was sanctioned. It is felt that a copy of this resolution, should be forwarded to the local FEDAI for record.' The plainliff protested against the sug-gestion by the letter dated 7th of Nov., 1977 which is P. D. 12 in Ex. A. It is not necessary to set out the actual terms of that protest. There were again reminders about the application relating to Ashim Roy Chowdhury to which it is not necessary to refer. Thereupon, on the 16th of Feb., 1978 the plaintiff wrote to the Spcretary of the defendant No. 10 Association as follows :--

'We wish to inform you that Mr. S. K. Chopra will be joining our firm as Part-ner and authorised person to call on the Banks. Kindly circulate our letter among the members of the Managing Committee for their information and formal confirmation. Further kindly inform the Chairman, FEDAI to enable Mr. Chopra to call on the Banks at the earliest.

We are giving below the details required for necessary amendment of the circular by FEDAI.

Name of Firm AuthorisedPersonsCHTRAJAN & CO. 1. C.J. PADIA12/A, Netaji Subhas 2. S.K. CHOPRARoad, First Floor, 3. ASHIM. ROYRoom No. 18A, CHOWDHURYCalcutta-700 001. We are enclosing herewith a cheque for Rs. 100/- being the required entrance fee.

Thanking you,'.

The necessary no objection certificate from the previous firm where Sri S. K. Chopra was working was also enclosed.

By two letters dated 8th of March, 1978 the plaintiff was informed that the plaintiff's application for taking Sri Ashim Roy Chowdhury as an assistant and inducting Sri S. K. Chopra as a partner of the firm and authorised to call on the banks has been rejected by the Executive Committee after careful considration. The defendant No. 19 offered to refund the security deposit. There was a letter dated 8th of April, 1978 wherein certain allegations had been made on behalf of the plaintiff that the plaintiff was threatened to withdraw the present suit which the plaintiff had in the meantime instituted claiming the reliefs as indicated before. It is not necessary for the determination of the controversy to refer to the actual terms of the said letter and the said allegations were denied on behalf of the defendant No. 10. The deed of dissolution between the partnership firm of Pridia & Co. has also been disclosed and apart from the facts which have been set out hereinbefore nothing much of importance appears therefrom. In Ext. B disclosed by the defendant No. 10 D. D. 8 contains the minutes of the meeting of the Executive Committee of the defendant No, 10 Association held on the 4th of March. 1978. The minutes are important and these are to the following effect :--

'Sri K. P. Purohit was called to the Chair. Last executive committee meeting minutes were read and confirmed.

The letter of Sri Bhupesh Dutta dated 17-2-1978 was discussed and it was decided to request Sri Dutta not to press for resignation.

The letter of M/s. S. B. Bagree dated 13-1-78 seeking permission for appointing Mr Dipendra Nath Mahji as an Assistant was discussed and approved.

The letter of M/s. Poddar Saraogi & Co. dated 21-12-77 was discussed and the name of Mr. M. K. Maitra as an assistant was approved. The letter of M/s. Ray-chand Lakhotia & Sons requesting approval of separation of Mrs. Neelam Dujari and according sanction to her separate firm was discussed and it was decided by the majority of the members that in view of the present circumstances same could not be approved.

The letters of M/s. Chiranjan & Co., regarding appointment of Mr. A. Roy Chowdhury as an assistant and Mr. S. K. Chopra as a partner were discussed and the majority of the members decided to reject both applications as these applications were against the verbal assurance of Mr. C. J. Padia at the time of allowing sanction of the firm that nobody connected with other firm will be taken as an assistant or partner by him and that the separation was a normal division between the brothers.

Some members informed the meeting that without sanction of the association some representatives of M/s. Chiranjan & Co., are contacting Bank exchange traders. After discussion it was decided to write to M/s. Chiranjan & Co. not to allow unauthorised persons to call or contact banks for exchange business failing which strict disciplinary action (including suspension of the firm) will be taken.

The members discussed about the stoppage of call money business through brokers and it was decided to make proper representation to the authorities concerned. With a vote of thanks to the chair the meeting terminated'.

Defendant No. 10 has also disclosed the minutes of the meeting of the 6th of March, 1976 being D. D. 9 indicating that the application of A- P. Misra was also rejected for certain reasons recorded in the said minutes. The minutes of the 10th of Sept. 1962 have also been disclosed being D. D. 10 in Ext. B regarding the rejection of certain application by one M/s. Ochhavlall Mathuradas & Co. Similarly, certain resolution dated 9th of Aug. 1956 was also disclosed which indicated that the application of one M/s. Bhanamull & Co. was rejected. These have been disclosed obviously for the purpose of establishing the bona fide of the action on the part of the defendant No. 10 Association. Ext. I has really in view of the amendment allowed no relevance now. The said affidavit was intended to establish that the defendant No, 10 Association was not properly represented.

11. Before I discuss the oral evidence it should be mentioned that there is no documentary evidence of any connection between the Bombay firm and either Sri S. K. Chopra or Sri Ashim Roy Chow-dhury. There is some evidence of the fact that Sri Ashim Roy Chowdhury had taken up subsequently some employment in Murarka & Co. of Calcutta which is alleged to have the same proprietor or partner as the Bombay Firm of wnich the defendant No. 10 was apprehensive. There is also no documentary evidence that any assurance was given at the time of the sub-division of the partnership to which the plaintiff belonged, that there would be no further sub-division or thatthe plaintiff would not utilise its full strength of three members as it was entitled to or take in any new partner or assistant. It is important to emphasise this aspect because there has been some suggestions to that effect in the evidence tenderd on behalf of the defendant No. 10.

12. It is now necessary for me to discuss the oral evidence adduced. The plaintiff tendered the evidence of Suren-dra Kumar Chopra and himself also gave evidence. Sree S. K. Chopra stated his qualifications in answer to question 8 and stated that while working in Normans' Ross & Co. he was a senior executive looking after the complete operations and running of the company and he further stated that he was authorised by the said company to call on the banks as well as some of the merchant houses for business. He stated in answer to question 14 that he intended to join plaintiff as he had left Normans' Ross & Co. and was looking for a suitable job. He further gave evidence that Normans' Ross & Co. had no objection to his joining the plaintiff and the defendant No. 10 was duly intimated of the said fact. He has categorically denied in answer to question 18 that he had any connection with Batliwalla & Karani of Bombay before and had no intention of having any connection with them in the future. It was suggested to him in cross-examination in question 19 that he had connection with the firm M. N. Murarka & Co. Sri Chopra in his answer has categorically denied that suggestion. He has also denied the suggestion that he was connected with Messrs. Batliwalla & Karani and he was trying to enter plaintiff or the defendant No. 10 association for facilitating the work of Messrs. Batliwala & Karani. Apart from the suggestions no evidence was adduced to contradict the clear and unequivocal testimony of Sri S. K. Chopra Sri Chopra gave his evidence in a straightforward manner and there is nothing on record or in his demeanour or in his past conduct or in his educational background to disbelieve his testimony.

13. The plaintiff was called to the English Bar from Lincoln's Inn in 1959 and thereafter he joined his father's business which was at that time named as Lakshmi Narayan Misra & Co. where the plaintiff continued to be a partner along with his brother and one J. P. Misra. He has explained in answer to question 11 the meaning of the 'exchange seat'. Exchange seat, according to the plaintiff, allows person to act as a calling member on the bank and a firm having 9 seats only has 9 members or partners to canvass for business and the business that is done is foreign exchange brokerage. The plaintiff had further stated that he continued to be a partner of 'Padia & Co.' up to Aug. 1977 and thereafter there was a deed of partition which is at page 32 of Ext. A dated 1st of Aug. 1977 and upon that the plaintiff retired from that partnership and plaintiff was allotted three seats and thereafter the plaintiff made an application to the defendant No. 10 for recognition of the plaintiff's firm and to allow him to work under the name and style of Chiranjan & Co. and that application was allowed. The necessary documents to that effect are included in Ext. A which were duly identified and proved by the plaintiff. The plaintiff has reiterated that plaintiff had three seats and the plaintiff was recognised as such by the defendant No. 10 Association. But, thereafter, the plaintiff had continued for sometime to work himself utilising only one seat and as the plaintiff was having some difficulty in doing all the business by himself and he wanted to take an assistant by the name of Ashim Roy Chowdhury he applied to the defendant No. 10 association for giving him permission to employ Sri Ashim Roy Chowdhury as an assistant. The plaintiff has narrated that on the 10th of Oct. 1977 the plain-tiff was informed that a meeting would be held on the 11th of Oct. 1977 and that there was some complaint against the plaintiff. The plaintiff attended the meeting of the llth of Oct. 1977 and in answer to question 42 he has narrated what had happened at that meeting. He has stated that the plaintiff was shown some blank paper containing the signatures of some persons and the contents of the papers were not divulged to him. But the plaintiff was informed that there was some allegation that the plaintiff was connected with a firm of Bombay named Batliwala & Karani and plaintiff denied the same and thereupon the plaintiff was asked to give the undertaking to the effect that the plaintiff was in no way connected with Batliwala & Karani. The plaintiff stated that as he had no connection he gave such an undertaking. In answer to question 48 the plaintiff has stated on oath that the plaintiff never had at any point of time any connectionwith the firm Batliwala & Karani and plaintiff has also identified and proved the letter containing the undertaking The plaintiff had explained that the plaintiff gave this undertaking because the plaintiff was assured that if the plaintiff gave such an undertaking he would be allowed to take Ashim Roy Chowdhury as an assistant. But according to the plaintiff nothing happened and he had sent reminders. The plaintiff proved the several reminders. The plaintiff has also mentioned that he knew Sri S. K. Chopra and he wanted to take him as a partner and he has also proved the application that he had made for permitting him to take Sri S. K. Chopra. In answeer to question 78 the plaintiff has stated that nothing was produced before him to substantiate the allegation that the plaintiff had connection with Battliwala & Karani, The plaintiff has also stated that before the rejection of the plaintiff's application as communicated by the letter dated 8th of March. 1978 which I have already mentioned the plaintiff was not summoned before the Executive Committee of the defendant No. 10 or was never asked to explain any matter by the said committee. In answer to question 87 in ex--amination-in-chief the plaintiff has stated that as a result of the rejection of the plaintiff's application it had become very difficult for the plaintiff to do business alone as the plaintiff was very much handicapped, he had to attend Bombay calls, telex and call on the banks. In answer to questions 88 & 89 the plaintiff has again reiterated that he had never any connection with the Bombay firm Batliwala & Karani or the partners thereof in any manner. In cross-examination it was suggested to the plaintiff that there was no animosity against the plaintiff as such. The plaintiff has reiterated that when the plaintiff was admitted as a new member on retirement from the old patnership the Chairman was a different person. The plaintiff was asked about the blank letter alleged, to have been shown to him at the meeting of the llth of Oct. 1977. The plaintiff was asked why the plaintiff had not indicated anything to that effect in the letter dated 18th of Oct. 1977 included in Annexure A. The plaintiff has stated that the plaintiff did not write the letter but the plaintiff was shown certain signatures of certain persons and that is the reason why the plaintiff had mentioned that he was shown a blank letter. It was suggested to him that it was not correct to allege that the Executive Committee did not give him any opportunity to go through the contents of the letter. The plaintiff has reiterated that the plaintiff was informed that there was some complaint against the plaintiff. It was suggested to him in question 113 that the plaintiff gave the undertaking because plaintiff was apprehensive that there was some justification for the allegation that the plaintiff had connection with Batliwala & Karani & Co. The plaintiff denied this suggestion. I must note that in view of the averments made in the written statement on behalf of the defendant No. 10 as well as in view of the stand taken in the affidavit in opposition on behalf of the defendant No. 10 in the interlocutory application where it was categorically stated that the plaintiff gave this undertaking at the suggestion of the defendant No 10. the suggestion made by learned Counsel on instruction from the defendant No. 10 in question 113 onwards was misleading and improper. It was suggested to him that Ashim Roy Chow-dhury was now working in Murarka & Co. The plaintiff denied that suggestion. It was further suggested to him that Murarka & Co. was a sister concern of Messrs. Batliwala & Karani. The plaintiff stated that it might be so. It was further suggested to him that according to defendant No. 10 Sri Chopra was connected with Batliwala & Karani. But this was denied by the plaintiff. It was further suggested to him that through Chopra, Batliwala & Karani were trying to enter the Calcutta market. But this was again denied by the plaintiff. The plaintiff was also shown minutes of the meeting of the 4th of March, 1978 when the application of the plaintiff was rejected. The plaintiff's attention was drawn to the fact that the application of Sri Lakhotia who was the secretary of the defendant No. 10 Association had also been rejected. The plaintiff explained in answer to question 137 that the same was rejected on a different ground. The application of Sri Laknotia was for separation. But the plaintiff's application was for taking an additional partner which the plaintiff was entitled to do because the plaintiff had the privilege of three seats. In the case 01 the plaintiff apart from the suggestions made there was nothing on record that in fact that plaintiff had any connection with Batliwala & Karani & Co. or that the plaintiff was trying to induct Sri S. K. Chopra in order to help Batliwala &Karani; to come into the Calcutta market. As I have mentioned before the suggestion made to the plaintiff that the plaintiff gave the undertaking because plaintiff was himself apprehensive was an improper suggestion which must have been made on the instruction of the defendant No. 10. The motive of the defendant No. 10 in making that improper suggestion cannot be commended. There was nothing on record or on the past conduct of the plaintiff or in the educational background of the plaintiff to disbelieve the unequivocal and solemn testimony of the plaintiff. The plaintiff it may be also mentioned gave his testimony in a very straightforward manner.

14. Sri Shyam Sundar Lakhotia the present Secretary of the defendant No. 10 was the only witness tendered on behalf of the defendants. About the reason for the rejection of the application of the plaintiff he has only stated in answer to question 7 that the plaintiff's application was considered and finally it was decided by the committee members that in the interest of the local brokers the same should not be allowed. He has stated in answer to question 11 that Sri Ashim Roy Chowdhury has now joined Murarka & Co. and Sri M. K. Murarka is the proprietor or the partner of Murarka & Co. and he is controlling the firm. He has denied that defendant No. 10 acted wrongfully in rejecting the application of the plaintiff. He has stated that it is difficult to ascertain whether the plaintiff has suffered any loss. In cross-examination he was asked about the delay in disposing of the application of the plaintiff. It was suggested to him that normally such applications are disposed of within two or three weeks. But in plaintiff's case over ten week's time was taken. Sri Lakhotia could not give any satisfactory answer. In question 45 in cross-examination Sri Lakhotia was suggested that the only reason for rejecting the application for induction of Sri S. K. Chopra as appeared from the minutes of the meeting was the fear that Batliwala & Karani might try to get into the Calcutta markets. In answer he stated that that was the thinking of the committee and that was the only reason according to the answer given in question 46. In question 46 he further stated that the committee had received reports from the market and also from some of the past employees of Murarka & Co. that Batliwala & Karani were trying to come into the Calcutta market. But Sri Lakhotia admitted in question 46 that these reports were not in writing nor could he remember the names of the persons who made those reports. -- (See answers to questions 47 to 51). He admitted in question 52 that no opportunity was given to the plaintiff or to Sri Section K. Chopra to deny any connection with Batliwala & Karani and Co. He had to admit in question 59 that the undertaking was given by the plaintiff at the suggestion of defendant No. 10. -- (See answer to questions 59-63). In answer to question 68 Sri Lakhotia tried to suggest that this application for induction of Sri Chopra was merely a device but to make a further sub-division for inducting Batliwala & Karani. He admitted in question 70 that there was no report or paper or evidence to substantiate his apprehension. -- (See answers to questions 70 to 73). He could not give any satisfactory answer in question 87 as to why the committee could not be satisfied with the undertaking given by the plaintiff. His answer to the question that there was no rule which authorised the committee to suggest to the plaintiff to re-unite with his former firm was also not satisfactory. The evidence, therefore, would be that the membership of the defendant No. 10 gives the members the vital right to earn their livelihood. Therefore, property rights are involved in this case. The evidence also establishes that there was no written report or reliable evidence upon which the alleged apprehension of the members of the Executive Committee of the defendant No. 10 can be justified. There is nothing on record to establish that Sri S. K. Chopra was acting for the purpose of facilitating the infiltration of Batliwala & Karani into the Calcutta market or to the defendant No. 10 Association. There was nothing further to indicate that the testimony of Sri S. K. Chopra or the plaintiff on this point could not be accepted. The defendant No. 10 could not produce the reports upon which the fancied apprehension of the members of the committee was based nor could the secretary name the persons who are alleged to have given such reports. No one was called to substantiate such alleged reports. No opportunity was given to the plaintiff or to Sri S. K. Chopra to contradict any alleged apprehension about Sri. S. K. Chopra and his connection with Batli-walla & Karani & Co. The ground for rejection of Sri Lakhotia's application and the ground for rejection of the plaintiff's application were entirely different. There is evidence that the plaintiff was entitled to operate with 3 hands. Plaintiff was denied that right. The plaintiff has asserted that the plaintiff was suffering damages for such denial. There is no evidence to contradict that assertion which can normally be presumed to follow from such denial. In this background the rights of the parties have to be decided. On behalf of the defendant No. 10 and on behalf of the added defendant it was emphasised that the defendant No. 10 was a domestic forum and its rules permitted an application for taking any partner or an assistant by any of its members to be rejected and if the defendant No. in had acted within the rules then such a decision of the defendant No. 10 association could not be interfered with by the Court in a civil action of the present nature. It was emphasised that there was no evidence of any actual damage suffered by the plaintiff and furthermore if the plaintiff has suffered any damages the plaintiff had ample remedy. In those circumstances, it was urged that the defendant No. 10 had acted bona fide within its jurisdiction and according to the rules and therefore this action was not maintainable. The different items under Issues 1 & 2 were directed to this purpose.

15. These questions have been considered in several decisions to which my attention was drawn. I shall presently deal with them. In the case of T. P. Daver v. Lodge Victoria : [1964]1SCR2 the Supreme Court was dealing with the power of expulsion of members by a Masonic Lodge, and the Supieme Court reiterated that the source of power of associations like clubs and lodges to expel the members was the contract on the basis of which they became members. This contractual origin of rule of expulsion had is corollary in the cognate rule that in expelling a member the conditions laid down in the rules must be strictly complied with. The Supreme Court, further, held that the jurisdiction of a civil court was limited and it could not sit as a court of appeal from the decision of such a body and the Courts could only interfere if the body had acted without jurisdiction or had acted in violation of the principles of natural justice or in bad faith. A learned single Judge of this Court had to consider the question of the jurisdiction of civil court of interference with the decision of the domestic tribunal in the case of Ujjal v. Netai Chand : AIR1969Cal224 and it was reiterated that the jurisdiction of the civil court was very limited in character and was confined to one of the three following grounds, namely :--

(i) When the tribunal overstepped the limits of its jurisdiction.

(ii) When it violated the principles of natural justice and

(iii) When it acted dishonestly, actuated by bias, bad faith and the like. The domestic tribunal was not bound by the rules of evidence. This case however was in connection with a Sporting Club namely, Cricket Association of Bengal League. In the case of Mahamaya Talkies v. EIM Pictures Assn. (1975) 1 Cal LJ 102. the plaintiff had purchased a cinema house to carry on the business of cinematographic films. The plaintiff ap-. plied for membership of the defendant association. Such membership was essential for those engaged in the business. Pending decision on the application the plaintiff was given 'provisional membership'. Subsequently, the executive committee of the defendant turned down the plaintiff's application for reasons stated in the resolution without giving the plaintiff a hearing. The plaintiff instituted the suit challenging the validity of the resolution on the ground of denial of natural justice and applied for interim injunction. It was held by a learned single Judge of this court that interim injunction should he granted and where membership of a trade association was essential for carrying on the trade there was an implied duty on the association to observe the principles of natural justice before expelling a member or rejecting an application for membership. Court had jurisdiction in such a case to protect an applicant from arbitrary action

16. In England this question has been considered in several decisions. Mr. Justice Warrington had an occasion to consider this question in the case of D'Arcy v. Adamson (1913) 29 TLR 367. There the plaintiff claimed an injunction restraining the defendant representing the committee of a club to which the plaintiff belonged from interfering with his enjoyment of the use and benefit of the club. The committee had passed a resolution in accordance with one of the rules recommending the plaintiff to send his resignation which would have been followed up by his expulsion owing to alleged disregard of the rules of the club. It was held that the plaintiff was entitled to the injunction claimed as he had no notice of the real reason upon which the committee had acted. The facts of that case were, however, very much different from the facts of the instant case before me. No property rights or right of carrying on business or earning one's livelihood was involved in the membership of the club. It is therefore, not necessary to discuss in any further detail the facts of that case. In the case of Cassel v. Inglis (1916) 2 Ch. 211 the members of the Stock Exchange were used to be elected for one year only and had to come up annually for re-election under rule 21 of the Rules wbich provided that the committee should on the first Monday in March proceed to re-elect such members and admit such candidates as they should deem eligible to be members of the Stock Exchange for one year commencing on the 25th of March, then instant. It was held that the committee in bona fide exercise of the discretion under Rule 21 did not deem an applicant eligible for re-election and was not obliged to give any reason for the decision, and even if an objection was given under Rule 35 the committee was not bound to give any reasons. The decision was given by a learned single Judge in the facts of that case and there the learned Judge had assumed that the committee had acted honestly and there was nothing to rebut that assumption on the part of the learned Judge. The facts of that case, therefore, are significantly different from the facts of the instant case before me where the bona fides and honesty of the members have been put in issue. In the case of Baird v. Wells (1890) 44 Ch D 661, it was held that in the case of an ordinarily constituted club in which members had rights of property, a member whose rights had been interfered with by the committee was entitled to ask the Court to consider whether the rules of the club had been observed: whether anything had been done which was contrary to natural justice and whether the decision complained of had been arrived at bona fide, but in the case of a proprietary club in which the members had no right of property, a member who had been expelled by a Committee though the proceedings were irregular could not obtain relief by way of injunction but would be left to obtain relief by way of damages. But in my opinion the most important and significant case which throws good deal of light on the present controversy is the decision in the case of Nagle v. Feilden (1966) 2 QB 633 There the Stewards of the Jockey Club controlled horse-racing on the flat throughout Great Britain. They had made rules of racing, sanctioned the holding of race meetings and no person was allowed to train horses for racing at their meetings unless he held a licence. The plaintiff a woman had trained racehorses for many years. It was the prac-tice of the Stewards to refuse to grant a trainer's licence to a woman in any circumstances. The plaintiff had frequently applied for and had been refused a trainer's licence although the Stewards had granted licences to men ser~ vants employed by her, in particular to her 'head lad.' The plaintiff brought an action against the defendants, two stewards on their own behalf and on behalf of the stewards and members of the Jockey Club, claiming, inter alia, a declaration that the practice of the ste-wards in refusing a trainer's licence to any woman was void as against public policy and an injunction ordering the strwards to grant her a licence. The learned single Judge affirmed the order of the master striking out the statement of claim and dismissing the action on the defendants' application which claimed that the action disclosed no cause of action. On appeal the Court of Appeal allowed the appeal and held that although there was no contractual relationship between the parties the plaintiff had an arguable case for claim-ins the relief sought on the ground that the practice of refusing a trainer's licence to a woman might be void as contrary to public policy. There Lord Denning at page 644 of the report observed as follows :--

'It was urged before us that the members of a trading or professional association were like a social club. They had, it was said, an unrestricted power to admit, or refuse to admit, any person whom they chose: and that this was established by a case in 1825 concerning the Inns of Court. In Rex v. The Benchers of Lincoln's Inn, Bayley, J. said :

'They make their own rules as to the admission of members; and even if they act capriciously upon the subject this Court can give no remedy in such a case, because in fact there has been no violation of any right.'

I venture to question this statement, notwithstanding the eminence of the Judge from whom it fell. The common law of England has for centuries recognised that a man has a right to work at his trade or profession without being unjustly excluded from it. He is not to be shut out from it at the whim of those having the governance of it. If they make a rule which enables them to reject his application arbitrarily or capriciously, not reasonably, that rule is bad It is against public policy. The Courts will not give effect to it. Such was held in the 17th Century in the celebrated case of the Tailors of Ipswich where they had a rule that no person was to be allowed to exercise the trade of a tailor in Ipswich unless he was admitted by them to be a sufficient workman. Lord Coke, C. J. held that the rule was bad, because it was 'against the liberty and freedom of the subject': see Ipswich Tailors' case. But if the rule is reasonable the Courts will not interfere. In the 18th Century, the Company of Surgeons required as a qualification for an apprentice an understanding of the Latin tongue. The Governors rejected an apprentice because on examination they found him to be totally ignorant of Latin. Lord Mansfield. C. J. declined to interfere with their decision : see Rex v. Surgeons' Co. (Master).

There are not many modern cases on the subject, but they support the principle which I have stated. In Weinberger v. Inglis, (1919 AC 606), the rules of the Stock Exchange gave to the Committee an absolute discretion to admit such persons as they 'shall think proper' The House of Lords were not referred to the old cases but to the cases where Directors are empowered in their discretion to refuse a transfer of shares, such as He Gresham Life Insurance Society, Ex part.e Penney. The House were disposed to accept this analogy and hold that if the Committee of the Stock Exchange were to act arbitrarily or capriciously, the Courts could set aside their decision --see what Lord Atkinson. Lord Parmoor and Lord Wrenbtiry said. Then again in Faramus v. Film Artistes Association (1964-1 All ER 25) a Trade Union, which kept a 'closed shop', made a rule forbidding entry to any person who had been convicted of a criminal offence. Lord Pearce said :

'Since this union has a monopoly, exclusion from its membership prevents aman from earning his living in this particular profession. An absolute rule that so prevents any person who may have suffered a trivial conviction many years before is in restraint of trade and unreasonable.'

We cannot, of course, decide the matter today. All I say is that there is sufficient foundation for the principle for the case to go to trial. We live in days when many trading or professional associations operate 'closed shops'. No person can work at his trade or profession except by their permission. They can deprive him of his livelihood. When a man is wrongly rejected or ousted by one of these associations, has he no remedy I think he may well have. even though he can show no contract. The Courts have power to grant him a declaration that his rejection and ouster was invalid and an injunction requiring the association to rectify their error. He may not he able to get damages unless he can show a contract or a tort. Bxtt he may get a declaration and injunction. Thus in Abott v. Sullivan (1952-1 All ER 226) the corn-porter (although he had no contact with the Committee) obtained a declaration that he was entitled to be reinstated on the register; and this Court would, I think, have granted an injunction but for the fact that he had already been reinstated before the judgment. In Davis v. Carew-Pole, (1956-2 All ER 524), the livery-stable-keeper (although he was not a member) obtained a declaration that the decision of the stewards disqualifying him was void, and an injunction restraining them from treating him as a disqualified person. I know that in the later case of Byrne v. Kine-matograph Renters Society Ltd., (1958-2 All ER 579). Harman, J. thought that those two cases could be based on contract. But I think that could only be done by inventing a fictitious contract. All through the centuries courts have given themselves jurisdiction by means of fictions; but we are mature enough, I hope, to do away with them. The true ground of jurisdiction in all these cases is a man's right to work. I have said before, and I repeat it now, that a man's right to work at his trade or profusion is just as important to him, as, perhaps more important than, his rights of property Just as the Courts will inteivene to protect his rights of property, they will also intervene to protect his right to work.'

Lord Justice Salmon at page 654 of the report observed as follows :--

'The principle that Courts will protect a man's right to work is well-recognised in the stream of authority relating to contracts in restraint of trade. The Courts use their powers in the interests of the individual and of the public to safeguard the individual's right to earn his living as he wills and the public's right to the benefit of his labours. The classic exposition of this branch of the law is to be found in Lord Macnaghten's speech in Nordenfelt v. Maxim Noruen-felt Guns & Ammunition Co., Ltd. (1891-94 All ER 1) :

'All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy and therefore void. That is the general rule. But there are exceptions: restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case. It is a sufficient justifi-fication, and indeed it is the only justification, if the restriction is reasonable --reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public.'

It may be noted that in the instant casebefore me 1 am concerned not with the case of expulsion or admission but with the refusal to permit one to take an assistant or partner. If a person has a right to ask for two hands then in my opinion he cannot be arbitrarily made to work with one hand and if there is no reasonable justification for action by a domestic forum in such a situation in my opinion, the Courts of today can certainly interfere. The case of Edwards v. Society of Graphical & Allied Trades 1971 Ch 354 was another case in which this aspect was discussed. The facts of that case in my opinion are not very relevant except the observations of Lord Denning that where the rules of a domestic forum interfere with a man's right to work the Courts of law are competent to protect such right. Reliance was placed on behalf of the added defendants on the decision in the case of Faramus v. Film Artistes' Association (1964) I All ER 25. But the facts of that case as would be apparent from the observations made at 28-33 of the report were entirely different. Emphasis was laid in the said decision on the distinction between the provision prescribingthe qualification for membership and a provision terminating the membership and the rules of natural justice applied to the procedure for expulsion. But it was suggested that it had to be applied to the procedure for adm


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