ROYAL CALCUTTA GOLF CLUB Vs. LALIT KUMAR JHALARIA

JUDGEMENT

(1.) THE order No. 61 dated December 19, 2014 passed by the learned Civil Judge (Junior Division), First Court, Alipore in Title Suit No. 2132 of 2007 rejecting an application under Order 7 Rule 11 of the Code is assailed in this revisional application.

(2.) THE plaintiffs/opposite parties filed the aforesaid title suit for declaration that the Annual General Meeting (AGM) held on 31st August, 2007 be declared, illegal, void and not binding being in violation of Article of association of the club. The following reliefs are claimed in the plaint:

(3.) AN application for temporary injunction was taken out on the basis of the aforesaid facts praying almost the identical relief as claimed in the plaint to restrain the defendant/petitioner from giving effect to the impugned resolution and also from alienating and/or encumbering any land of the club for establishing a hotel. Both the Courts rejected the application for temporary injunction and the matter ultimately reached before this Court in C.O. No. 3317 of 2009. The order disposing of the said revisional application reveals that the Trial Court rejected the application for temporary injunction as the suit is not maintainable because of the embargo created under Section 10 GB of the Companies Act. Though the Appellate Court did not approve the finding of the Trial Court on maintainability of the suit but affirmed the ultimate decision as the majority members have unanimously decided to go ahead with the hotel project and, therefore, at the instance of the plaintiff, injunction should not be passed. Before this Court, the defendant/petitioner fairly conceded that there was no bar in maintaining the suit but defended the ultimate decision of both the Courts below by which the application for temporary injunction was rejected. In course of the hearing, the defendant/petitioner pointed out that clause 3 (g) of the memorandum of association empowered the defendant/company to sale, improve, manage, develop, lease, mortgage, dispose of or other wise deal with all or any of the property of the Company and, therefore, the decision to go ahead with the hotel project could not be in contravention to the object and purpose of the petitioner club. The Co -ordinate Bench observed that though the power to sale or deal with the property of the club is present in the memorandum of association but the same cannot be exercised in total disregard to the ultimate object for which the claim is formed. Ultimately the revisional application was disposed of restraining the defendant/petitioner to maintain status quo with regard to alienation of the suit property till the disposal of the suit.