Gauhati High Court
Page No.# 1/15 vs Binod Das on 20 December, 2024
Page No.# 1/15
GAHC010036222023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Civil)/564/2023
INDIA CLUB, GUWAHATI AND 4 ORS.
REPRESENTED BY ITS GENERAL SECRETARY,
GNB ROAD, NEAR RESERVE BANK OF INDIA, GUWAHATI, PO GUWAHATI
GPO, PS PALTAN BAZAR, GUWAHATI-781001, DIST KAMRUP M ASSAM
2: THE GENERAL SECRETARY
INDIA CLUB
GUWAHATI
GNB ROAD
NEAR RESERVE BANK OF INDIA
GUWAHATI
PO GUWAHATI GPO
PS PALTAN BAZAR
DIST KAMRUP M ASSAM
3: DR. ASHIM CHOUDHURY
S/O LATE DHARANIDHAR CHOUDHURY
GNB ROAD
AMBARI
OPP. BURA JAMA MASJID GUWAHATI
781001
DIST KAMRUP M ASSAM
4: THE CLUB COMMITTEE
REPRESENTED BY ITS PRESIDENT
INDIA CLUB
GUWAHATI
GNB ROAD
NEAR RESERVE BANK OF INDIA
GUWAHATI
PO GUWAHATI GPO
PS PALTAN BAZAR
Page No.# 2/15
DIST KAMRUP M ASSAM
5: THE GENERAL COUNCIL
INDIA CLUB
GUWAHATI
REPRESENTED BY ITS GENERAL SECRETARY
INDIA CLUB
GUWAHATI
GNB ROAD
NEAR RESERVE BANK OF INDIA
GUWAHATI
PO GUWAHATI GPO
PS PALTAN BAZAR
DIST KAMRUP M ASSA
VERSUS
BINOD DAS
S/O LATE CHAKRADHAR DAS, RESIDENT OF HOUSE NO. 54, R.G BARUAH
ROAD, GUWAHATI 781005, DIST KAMRUP M ASSAM
Advocate for the Petitioner : MR. N BHARALI,
Advocate for the Respondent : MR. D MOZUMDER,
Linked Case : FAO/51/2022
BINOD DAS
S/O LATE CHAKRADHARA DAS
RESIDENT OF HOUSE NO. 54
R.G BARUAH ROAD
GUWAHATI 781005
DIST KAMRUP M ASSAM
VERSUS
INDIA CLUB
GUWAHATI AND 4 ORS.
REPRESENTED BY ITS GENERAL SECRETARY
GNB ROAD
NEAR RESERVE BANK OF INDIA
GUWAHATI
PO GUWAHATI GPO
PS PALTAN BAZAR
Page No.# 3/15
DIST KAMRUP M ASSAM
2:THE GENERAL SECRETARY
INDIA CLUB
GUWAHATI
GNB ROAD
NEAR RESERVE BANK OF INDIA
GUWAHATI
PO GUWAHATI GPO
PS PALTAN BAZAR
DIST KAMRUP M ASSAM
3:DR. ASHIM CHOUDHURY
S/O LATE DHARANIDHAR CHOUDHURY
GNB ROAD
AMBARI
OPP. BURA JAMA MASJID GUWAHATI
781001
DIST KAMRUP M ASSAM
4:THE CLUB COMMITTEE
REPRESENTED BY ITS PRESIDENT
INDIA CLUB
GUWAHATI
GNB ROAD
NEAR RESERVE BANK OF INDIA
GUWAHATI
PO GUWAHATI GPO
PS PALTAN BAZAR
DIST KAMRUP M ASSAM
5:THE GENERAL COUNCIL
REPRESENTED BY ITS GENERAL SECRETARY
INDIA CLUB
GUWAHATI
GNB ROAD
NEAR RESERVE BANK OF INDIA
GUWAHATI
PO GUWAHATI GPO
PS PALTAN BAZAR
DIST KAMRUP M ASSAM
------------
Advocate for : MR. D MOZUMDER
Advocate for : S ALI (r-3) appearing for INDIA CLUB
GUWAHATI AND 4 ORS.
Page No.# 4/15
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 20.12.2024
Heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. P.
Bharadwaj, learned counsel for the applicants in I.A.(Civil) No. 564/2023 and
respondent in FAO No.51/2022. And also heard Mr. S. Biswas, learned counsel
for the opposite party in I.A.(Civil) No. 564/2023 and appellant in FAO No.
51/2022.
2. As agreed upon by learned Advocates of both sides, it is proposed to
dispose of the present I.A.(Civil) No. 564/2023 and also the FAO No.51/2022, by
this common order.
3. It is to be noted here that I.A. (Civil) No. 564/2023, under Order 39 Rule
4 read with Section 151 of the Code of Civil Procedure, is preferred by the
applicants for setting aside/vacating/discharging the ex-parte order of ad-
interim temporary injunction dated 23.09.2022 passed by this Court in I.A.(Civil)
No.2961/2022, arising out of FAO No.51/2022, and the said FAO No.51/2022
was filed by the opposite party/appellant challenging the order dated
21.09.2022, by which the learned trial court has issued notice to the opposite
party, the respondent herein, in the interlocutory application No. 5815/22, filed
by the appellant in Title Suit No. 569/22.
4. The background facts leading to filing of the interlocutory application
being I.A.(Civil) No.2961/2022, and the FAO No. 51/2022, is briefly stated as
under:-
Page No.# 5/15
“The applicant No.1 is a reputed club of Guwahati, which is registered as
society under the Societies Registration Act, 1860, with Registration
No.RS/647 of 1982-83 and the opposite party/appellant is a member of
the aforesaid club. The applicant No.1/respondent No.1, hereinafter
referred to as the India Club, is a club having 8 classes of members
enrolled therein and all the affairs and activities of the Club is being
governed by its own Constitution and Rules, framed and adopted by theaforesaid society. In the month of May, 2022, 85 th Annual General Meeting
of the India Club was notified to be held on 26.06.2022 and one Dr. Ashim
Choudhury, a life member was appointed as the Returning Officer to
conduct the election of office bearers and Club Committee members of the
Club. Thereafter, the Returning Officer had issued an Election Circular,
dated 13.05.2022, inviting nominations from the interested permanent
members of the Club for election of the office bearers. Accordingly, the
opposite party/appellant, namely, Shri Binod Das had filed his nomination
for the post of Joint Secretary of the Club enclosing photocopy of mark
sheet of TDC Final year. Thereafter, the Returning Officer had directed himto file his original mark sheet of B.Com 1 st and 2nd year examination as
well as pass certificate issued by Gauhati University in his name, as in
view of the Constitution of the Club, the Joint Secretary should have a
graduate degree. Thereafter, on 31.05.2022, at about 12/12:30 p.m., Shri
Binod Das, entered into the office room of the Club and taking advantage
of absence of the Returning Officer, the respondent No.3, he had pulled
out his nomination paper and the documents annexed therewith from the
file lying in the table of the Club Manager, namely, Mr. Enoj Yadav and
thereafter, tore apart of his nomination paper and documents and took
Page No.# 6/15away the same with him and on being violated the code of conduct of the
members, on 31.05.2022, the members of the India Club Committee
decided to make an in-house inquiry as per Article 10 of the Constitution
and Rules and thereafter, show-cause notice was issued to Shri Binod Das
on 03.06.2022, for his gross misconduct on 31.05.2022, within the Club
premises.
The Club Committee gave all reasonable opportunity to Shri Binod
Das for filing his reply and hearing to the aforesaid show-cause within
08.06.2022 and thereafter, Shri Binod Das had submitted his reply on
03.06.2022, wherein he made some false and baseless allegations against
the Returning Officer and did not make any reply to his indecent
behaviour and conduct on 31.05.2022. Then, after discussion of the
incident of 31.05.2022 and considering the CCTV footage, the Club
Committee had suspended Shri Binod Das for 6 continuous months, which
was communicated to him.
Against the said suspension order, Shri Binod Das preferred an
appeal on 17.06.2022, against the Returning Officer of the General
Election 2022-24 and he had also annexed one verification certificate
issued by Controller of Examination, Gauhati University dated 14.06.2022,
to one Rajib Dutta, along with the appeal dated 17.06.2022, wherein it is
stated that the Controller of Examinations, Gauhati University, verified the
mark-sheet of B.Com Part-II Examination, bearing Roll No. E/6243,
R.No.195 of the year 1996 and the contents were found correct and the
result was declared as passed. Thereafter, the Executive Committee
reduced the suspension period to 2 months. Thereafter, Shri Binod Das
filed one review petition before the General Council against his suspension
Page No.# 7/15
from membership of the Club and the review petition was taken up in the
Annual General Meeting of the Club held on 26.06.2022, wherein
suspension of Shri Binod Das was reduced to one month, till 09.07.2022.
However, the said verification certificate, issued by the Gauhati
University, filed by Shri Binod Das is found to be a forged document and
the same does not tally with the official record of the Controller of
Examinations, Gauhati University. Then on 05.08.2022 the Returning
Officer of General Election for the year 2022-24, had filed a written
complaint before the General Secretary alleging that Shri Binod Das had
submitted false verification certificate with his appeal dated 17.06.2022
and thereby mislead and misrepresented the club-committee by forged
verification certificate, enclosing one letter from Deputy Controller of
Examinations of Gauhati University.
Then, the General Secretary of the Club, having found the
allegations serious in nature, being supported by documentary proof,
referred the same to the Executive Committee and the Executive
Committee after deliberation decided to seek reply from Shri Binod Das
and issued notice to him on 09.08.2022 and Shri Das submitted his reply
on 30.08.2022, alleging that the Club Committee is being used for settling
personal score and Dr. Ashim Choudhury, being Returning Officer, ceased
to have any power to verify his educational qualification after completion
of the Club election on 26.06.2022, but he did not state anything about
his educational qualification. Thereafter, the Club Committee decided to
call for Extra Ordinary Meeting of the General Council on 25.09.2022 at
12:00 noon, with the agenda to discuss the allegations levelled against
Shri Binod Das, by Dr. Ashim Choudhury.
Page No.# 8/15
Then, Shri Binod Das preferred a title suit, being Title Suit
No.569/2022 before the Court of Civil Judge No.2, Karmup(M), Guwahati
and along with the title suit, he has also filed an application under Order
39 Rule 1 and 2 read with Section 151 of the CPC for grant of temporary
injunction. But, the learned Civil Judge had decided to issue notice to the
respondents of the title suit and the application under Order 39 Rule 1 and
2 CPC, vide impugned order dated 21.09.2022. Thereafter, Shri Binod Das
preferred an appeal, being FAO No.51/2022, before this Court challenging
the impugned order dated 21.09.2022, and also he had filed an
application under Order 39 Rule 1 and 2 of the CPC for granting temporary
injunction. Then, this Court vide order dated 23.09.2022 was pleased to
dispose of the said application on the very first day, by granting ad-interim
temporary injunction restraining the opposite parties from taking any
coercive action including expulsion of the membership of the petitioner
from India Club till next returnable date.”
5. The present interlocutory application is preferred with the prayer as
aforesaid.
6. Mr. Choudhury, learned Senior Counsel for the applicant, submits that in
the order, dated 23.09.2022, while granting ad-interim temporary injunction, the
basic requirement of granting injunction i.e. prima facie case, balance of
convenience and irreparable loss, has not been discussed and without issuing
notice to the present applicants, this Court has disposed of the application,
though subsequently, the same had been modified and notice was issued to the
present applicants.
5.1 Mr. Choudhury, submits that Shri Binod Das, the appellant in FAO
Page No.# 9/15
No.51/2022, is a member of the India Club and he had filed his nomination for
being elected to the post of Joint Secretary of the India Club, in the General
Election of the Club for the years 2022-24 and the educational qualification for
being elected to the post of Joint Secretary is graduate as per Article 23(I)(6) of
the Constitution and Rules of the Club and the appellant, while filing the
nomination enclosed the photo copy of his mark-sheets of B.Com Part-I and
Part-II. But, the Returning Officer had directed him to file his original mark
sheet of B.Com 1st and 2nd year examination as well as pass certificate issued
by Gauhati University in his name, as in view of the Constitution of the Club, the
Joint Secretary should have a graduate degree and the same was in his
authority being the Returning Officer and there was nothing wrong with the
same. Mr. Choudhury further submits Then, on 31.05.2022, at about 12/12:30
p.m., Shri Binod Das entered into the Club and took out his nomination paper
from the concerned file lying in the table of the Club Manager and tore apart of
the same along with the documents and left the place. Thereafter, the matter
was discussed in Club Committee and a decision was taken to suspend him for a
period of 6 months and ultimately, the same was reduced to one month on an
appeal and review petition filed by Binod Das. It is also the submission of Mr.
Chudhury that along with the appeal Shri Binod Das had submitted one
verification certificate issued by Controller of Examination, Gauhati University
dated 14.06.2022, to one Rajib Dutta, wherein it is stated that the Controller of
Examinations, Gauhati University, verified the mark-sheet of B.Com Part-II
Examination, bearing Roll No. E/6243, R.No.195 of the year 1996 and the
contents were found correct and the result was declared as passed. And
thereafter, the Returning Officer, Dr. Ashim Choudhury got one reply from the
Deputy Controller of Examinations, Gauhati University that the verification
Page No.# 10/15
certificate submitted by Shri Binod Das were found to be forged and then he
had submitted a complaint to the General Secretary on 05.08.2022. Thereafter,
the matter was discussed in detail and a response was sought from Shri Binod
Das, wherein he submitted his reply and made some baseless allegations.
Thereafter, the Club Committee decided to call for Extra Ordinary Meeting of the
General Council and before the Extra Ordinary Meeting of the General Council,
Shri Binod Das filed a title suit before the learned trial court, along with the
petition for temporary injunction, wherein notice was issued and then he
preferred an appeal being FAO No.51/2022 before this Court and also filed an
application under Order 39 Rule 1 and 2 CPC, wherein the order in question was
passed by this Court granting ad-interim injunction.
5.2 Mr. Choudhury, further submits that since granting of the ad-interim
injunction and subsequent modification of the same, the matter was not listed
for more than two years, for which no action could be taken against Shri Binod
Das and there is urgent necessity that the order of temporary injunction has to
be modified. Alternatively, Mr. Choudhury also submits that the matter may be
remanded to the learned Trial Court to decide the injunction petition pending
there, wherein the present applicant/respondents had already filed the objection
and the learned Trial Court may be directed to dispose of the same after hearing
both the parties and till then, the interim protection granted by this Court may
be extended.
7. On the other hand, Mr. Biswas, learned counsel for the opposite
party/appellant has vehemently opposed this petition. Mr. Biswas, submits that
the General Election of the Club was over on 26.06.2022 and the election result
of the office bearers of the Club has already been declared and Dr. Ashim
Choudhury ceased to be a Returning Officer. And as such, Mr. Biswas submits,
Page No.# 11/15
he had no authority to lodge a complaint on 05.08.2022 and on the basis of
which notice was issued to Shri Binod Das on 09.08.2022 and the meeting of
the Executive Committee of the Club was held on 06.09.2022 and the complaint
filed by Dr. Ashim Choudhury on 05.08.2022 was enclosed and he was not
allowed to inspect the alleged forged documents and as per Article 10 of the
Constitution of the Club, the Executive Committee can take cognizance of the
disciplinary matter and the General Council is the appellate authority and in case
of expulsion as proposed by the Club Committee, the General Council can
decide the matter according to Article 10 of the Constitution of the Club and the
Extra Ordinary Meeting of the General Council cannot be convened and/or held
in respect of any disciplinary matter. Mr. Biswas, further submits that as per
resolution of the Executive Committee, in its meeting held on 06.09.2022, the
Extra Ordinary Meeting of the General Council is called by the applicants herein,
the said Extra Ordinary Meeting of the General Council has no authority to deal
with the disciplinary matter, being the same appellate authority and if any action
is taken against the opposite party/appellant, then it will take away his right to
prefer appeal against the decision of the club-committee. Further, Mr. Biswas
submits that this Court has rightly extended the interim protection to the
opposite party/appellant and therefore, it is contended to dismiss the petition.
8. Having heard the submission of learned Advocates of both the parties, I
have carefully gone through the petition and the documents placed on record
and also perused the Constitution of the Club, which is annexed with the
application as Annexure-I.
9. Before we dwell upon the facts and circumstances of the case in hand it
would be in the interest of justice to peruse some of the Article, specially Article
10, 17, 18, and 19 of the Constitution of the Club, as the entire dispute revolves
Page No.# 12/15
around the said Articles. Article 10 read as under:-
“The Club Committee shall take cognizance of any infraction of the
constitution any bye laws of the club, violation of code of conduct and ask
the member to make the preparation in the manner they consider fit, in
case of failure to comply or should any circumstances occur or likely to
occur to interrupt the harmony, affect the character or endanger the
stability of the club, it shall be the duty of the committee to call upon any
member to resign. If he or she declines to do so, they shall hold an in-
house inquiry, wherein the member shall be given an opportunity to give
explanation, if any. If the explanation is accepted, the matter shall stand
closed. In case the member is found guilty, the club committee may
impose any penalty except expulsion. In case, it proposes to expel the
member, a meeting of the general council shall be called to decide the
matter. During the interim period, the club committee may, in its
discretion, suspend the offending member till the resolution of the matter
by the general council. The matter of expulsion of a member may be
decided, by ballot or otherwise, by the general council only if it is
supported by two third of the members present in the meeting. The
expelled member shall be debarred from all further privileges of
membership and a note of the circumstances in each case shall be made
in the register.”
10. Article 17 of the Constitution of the Club provides for constitution and
functions of General Council and Article 18 deals with Annual General Meeting
and Article 19 deals with Extra Ordinary Meeting of the General Council, which
read as under:-
“If 1/3rd of the permanent members makes a proper application in writing
with signatures requesting the General Secretary to convene an extra
ordinary meeting of the General Council, the later shall convene a
requisitioned meeting within fifteen days. In case of default, the President
himself shall convene such meeting within fifteen days.
The Club Committee meeting may be held as per requirement but it must
meet once in a month.
The meeting of the sub committees may be held as frequently as
Page No.# 13/15required.”
11. In the case in hand, it appears that Dr. Ashim Choudhury has lodged the
complaint on 05.08.2022 alleging submission of forged verification Certificate in
the appeal preferred by Shri Binod Das, the appellant in the FAO No.51/2022,
enclosing the letter he had received from the Deputy Controller of Examinations,
Gauhati University, in support of his allegation. Then, the General Secretary of
the Club as per Article 23(v)(14) decided to attend the same. Considering the
seriousness of the matter discussed the same in the Executive Committee and
the Executive Committee decided to obtain reply from Shri Binod Das and a
notice to that effect was issued on 09.08.2022 and Shri Binod Das had
submitted his reply on 30.08.2022, wherein he made some allegations against
the Returning Officer and the Returning Officer ceased to have any power being
appointed for conducting election of the Club, which was over on 22.06.2022.
Thereafter, the Club decided to call for an Extra Ordinary Meeting of the General
Council on 25.09.2022 at 12:00 noon with the agenda to discuss the allegations
levelled against Shri Binod Das by Dr. Ashim Choudhury.
12. Though, it is submitted by Mr. Biswas that the Extra Ordinary Meeting of
the General Council has nothing to do with the disciplinary proceeding initiated
against a member of the Club, yet, having carefully gone through the Article 10
of the Constitution of the Club, this Court is unable to record concurrence with
the submission of Mr. Biswas, learned counsel for the opposite party/appellant
herein. It is clearly provided in the said Article that if the Club Committee
proposes to impose penalty of expulsion, then the meeting of the General
Council has to be called. Article 19 provides for extra ordinary meeting of the
General Council. A conjoint reading of Article 17, 18 and 19, reveals that there is
no bar in dealing with the disciplinary matters by the extra ordinary meeting of
Page No.# 14/15
the General Council. Though it is being contended by Mr. Biswas that Extra
Ordinary General Meeting of the General Council cannot take up the disciplinary
matter yet, the same cannot be accepted, as it is the same General Council
which has to meet as per the requirement, as provided in Rule 19.
13. It is a fact that General Council is the appellate authority and it can hear an
appeal against the decision of the club-committee as per Rule 17(j) and as per
Rule 17(1). But at the same time it has also the power to suspend, expel and
impose penalty on member for the infraction.
14. It also appears that the decision to convene the Extra Ordinary General
Meeting of the General Council was taken in the meeting of the Executive
Committee held on 06.09.2022, and except the President all the members (10 in
number) decided to refer the matter to the Extra Ordinary General Meeting of
the General Council. Further, it appears that the Committee had found that the
entire matter, concerning Shri Binod Das, is of grave nature and unprecedented
and it has tarnished the image of the Club, that being so, it cannot be said that
no reason was assigned in the minutes of the meeting of the Executive meeting
held on 06.09.2022.
15. Indisputable, the injunction petition is still pending before the learned trial
court. In the said petition, the applicant/respondent had also filed written
objection. Therefore, the learned counsel for the applicant/respondent
contended to remand the matter to the learned trial court with a direction to
dispose of the same in a time bound manner.
16. Taking note of the submission of the learned Advocates of both the
parties, and also taking not of the relevant provisions of the Constitution of the
Club, this Court is inclined to remand the matter to the learned Trial Court
Page No.# 15/15
granting liberties to the parties to raise the points before the learned trial court,
wherein the injunction petition is pending and the applicant/respondent had
herein also had filed written objection.
17. However, the learned trial court is directed to hear both the parties on the
injunction petition lying before it and to dispose of the same in accordance with
law, preferably, within a period of 1(one) month from the date of receipt of a
certified copy of this order, without being influenced by any of the observations
made herein above. And till disposal of the injunction petition, the interim
protection extended to Shri Binod Das, the opposite party/appellant herein, by
this court, shall continue.
18. In terms of above this I.A.(Civil) No. 564/2023 and the FAO No. 51/2022,
stands disposed of.
JUDGE
Comparing Assistant