AMAR VIJAY MERCHANT Vs. PUSHPAKUMAR M D THACKERSY

JUDGEMENT

(1.) BY this Civil Revision Application filed under section 115 of C. P. C. , the petitioners herein seek to challenge the legality and correctness of the order dated 27-9-90 passed by the Bombay City Civil Court refusing petitioners Chamber Summons No. 774 dated 6-8-90 in Suit No. 4539 of 1989.

(2.) SHRI Vijay Merchant the well-known social worker and philonthrophist was concerned with various trust and philonthrophy institutions and he was also the managing trustee of Sir Vithaldas Damodar Thackersy Charitable Trust which was established by indenture dated 18th October, 1984. The said trust is registered and is public charitable trust. Sir Vijay Merchant died on 27-10-87. The present petitioners No. 1, 2 and 3 are his sons, wife and daughter respectively. The respondents No. 1 and 2 herein are brothers of Shri Vijay Merchant and respondents No. 4 and 5 are his nephews. The present petitioners (for short, "plaintiffs") filed a suit in the Court of Bombay City Civil Court at Bombay against the respondents No. 1 to 7 herein after obtaining consent of the Charity Commissioner, State of Maharashtra, Bombay for filing the said suit. The plaintiffs averred in the plaint that the respondents No. 1 to 6 herein (for short, "defendants No. 1 to 6") are the present trustees of Shri Vallabhdas Damodar Charitable Trust (for short, "trust") and the plaintiffs are the persons having interest in the said public trust and all of them are beneficiaries of the said trust. According to plaintiffs, Shri Vijay Merchant prior to his death discovered certain irregularities committed on trust by 4th defendant Sudhir Thackersy in active collusion with his brother Chandrahas Thackersy who is not a trustee in the trust, and, Mr. Jagdish Thackersy 5th defendant. Shri Vijay Merchant found that these persons have committed gross breach of trust and had also misconducted themselves in collusion to the prejudice of the trust. The plaintiffs alleged that there was deliberate siphoning of the trust properties tantamounting to misappropriation of trust fund and said persons had proceeded to profiteer personally at the cost of the trust and had in fact committed breach of trust in respect of trust property. According to the plaintiffs for the reasons stated and circumstances narrated in the plaint, day-to-day activities of the trust had come to standstill. The plaintiffs required complete investigation into the affairs of 4th defendant Sudhir Thackersy and 5th defendant Jagdish Thackersy in regard to the acts of conversion, misrepresentation, breach of trust, etc. in the matter of shares, transfers, and also illegal import of mercedes car and misuse of it by Shri Sudhir Thackersy. It is further case of the plaintiffs that both defendants No. 4 and 5 were financially corrupt and had rendered themselves liable to be removed as trustees of the trust. The plaintiffs made numerous requests to the trustees for remedial action, but of no avail. The plaintiffs averred in the plaint that on the face of several acts of omissions and commissions committed by defendant No. 4 in active co-operation with defendant No. 5, it was necessary, just and proper that they should be removed as trustees of the trust. According to plaintiffs, defendant No. 4 Sudhir Thackersy in collusion with defendant No. 5 Jagdish Thackersy has misappropriated share holding which formed the corpus of the trust to their names or to the companies where the said Shri Sudhir Thackersy and Jagdish Thackersy have interests. According to plaintiffs the trust which came to be created by these trustees were on the face of it bogus trusts and neve carried-out any philontrohpic work and the objectives of these 31 trusts with active participation of defendant No. 4 Shri Sudhir Thackersy and Shri Chandrahas Thackersy as trustees were never disclosed to the relevant trustees of the trust. The plaintiffs alleged that other property in the form of shares has been siphoned by defendant No. 4 and defendant No. 5 through the medium of 31 trusts of companies in which both of them have control. ECK Houbold and Laxmi Ltd. is a company in which defendant No. 5 is executive and Chandrahas is director and the properties of the trust siphoned of by these defendants should be returned to the trust. The plaintiffs submitted in the plaint that it was just and necessary in the circumstances that these 31 companies should be persuaded not to continue to hold to the illegal benefits derived by them from the transfer of shares into their company and they be ordered to return all these shares to the trust or in any event to the 31 trusts subject, however, to the main trust being represented in these 31 trusts. The VDT trust property comprising of 6 floor of Vithal Chambers being used by Hindustan Spinning and Weaving Mills Ltd. at the instance of defendant No. 4 Shri Sudhir Thackersy should be ordered and directed to be returned back to the trust forthwith and the belongings of Hindustan Spinning and Weaving Mills Ltd. be removed. The plaintiffs in the background of the aforesaid averments prayed for declaration and injunction. The plaintiffs thus prayed that it be declared that defendants Nos. 4, 5 and 6 have acted to the prejudice of the trust and or misconducted themselves and/or violated the provisions of Bombay Public Trust Act and are, therefore, liable for actions in law and defendants Nos. 4 to 6 be removed as trustees of Sir Vithaldas Damodar Trust. The prayer was also made that an independent audit and enquiry be taken of accounts and transactions of the trust in the matters concerning the donation of trust and its shares and investments to the 31 trusts named as Sir V. D. Thackersy Charitable Trust Nos. 1 to 31 and defendant No. 4 be ordered to return the investment in shares transferred to subsidiaries of ECK Haubold and Laxmi Ltd. and have them transferred to the trust or in the alternative defendant No. 4 Shri Sudhir Thackersy be ordered to reimburse the trust in cash equivalent in money of shares and other investments which were made over to the 31 trusts on the basis of valuation of the shares and investments as on the date of transfer together with interest computed thereon, and, that all the donations of shares and investment made over to the 31 trusts be declared to be void and ultravires of the trust deed, illegal and improper and of no binding effect on the trust. The plaintiffs also prayed that Shri Amar Vijay Merchant and Mrs. Aditi Santhnam be appointed as trustees of the trust. The interim-reliefs pending hearing and final disposal of the suit were also prayed.

(3.) DURING pendency of the suit, the plaintiffs took out chamber summons praying therein that leave be granted to them to amend the plaint by adding respondents Nos. 8 to 43 herein as defendants, and for adding and amending pleadings as proposed in the Schedule Exh. C to the affidavit in support of chamber summons.