TMI Blog1958 (1) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also stated that the committee of the management, which is to be appointed by the governor-General, is to select from among its own members one member who will serve as Secretary. By Article 7 of the said Diploma, it is stated that all the receipts and the funds of the institute shall be deposited in the National City Bank of New York, Bombay, and their withdrawals shall be made by means of cheques signed by the President and also by the Secretary of the Managing Committee. 2. It may be noted that this institute was registered as a public trust under the provisions of the Bombay Public Trusts Act, 1950. It appears that, at the time when it was so registered, the Managing Committee consisted of four members, who were Sergio D'Souza, Prince Lobo, T.V. Mascarenhas and J. Boadita, and the President was one B.G. Fonseca. After the institution was registered under the provisions of the Bombay Public Trusts Act, the names of the aforesaid four members of the Managing Committee and that of the President were entered in the register kept under Section 17 of the Bombay Public Trusts Act. 3. Sometime in June 1955, J. Boadita was deported out of India under the Foreigners Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken out on behalf of the plaintiffs praying that a receiver be appointed during the pendency of the suit for the management and administration of the trust property of the first defendant Institute. They contended in the Notice of Motion that the dissensions and disputes between the members of the Committee 'inter se' rendered the smooth working of the Institute impossible, and brought its affairs to a standstill causing great loss and hardship to the beneficiaries under the trust. This application for the appointment of the receiver was hotly contested by defendants Nos. 4 and 5. It may be stated that it was defendant No. 5, who oppose the application from stage to stage by filing necessary affidavits and also documents in support o his contention. Defendant No. 4 did not take any active part in opposing the application, except by filing an affidavit in support of his contentions and by adopting the other contentions raised by defendant No. 5. Defendant No. 5 contended that it was really defendants Nos. 2 and 3, who in spite of the fact that they had been validly removed from their offices in the Managing Committee by the Governor-General of Portuguese India, caused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charity was founded by the Portuguese Government. Accordingly, he appointed the Court Receiver was Receiver of the property of the Defendant-Institute in Suit No. 604 of 1957. 9. Against the order appointing the Receiver, appeal from Order No. 160 of 1957 has been preferred by the 4th and 5th defendants. Consistently with the order appointing the Receiver that was passed by the learned trial Judge in Suit No. 604 of 1957, he did not pass any order in the other Notice of Motion taken out in suit No. 1011 of 1957. Against the order such as it was which had been passed by the learned Judge in the Notice of Motion taken out in suit No. 1011 of 1957, the other appeal from Order No. 168 of 1957 has been filed by the fifth Defendant. 10. The only question that falls to be considered in these two appeals is, whether it is just and convenient to appoint a Receiver, and whether in so appointing the Receiver the learned trial Judge has exercised his discretion properly or otherwise. 11. It may be stated that there cannot be any the least doubt that there have been serious disputes and dissensions between defendants Nos. 2 and 3 on the one hand and defendants Nos. 4 and 5 on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e managing Committee even today, and that claim receives some support, be it so small, from the fact that their names appear in the records of the Charity Commissioner as the members of the Managing Committee. The entries in the records of the Charity Commissioner would, in my judgment, have at least some prima facie evidentiary value to show that these persons, namely defendants Nos. 2 and 3, are members of the Managing Committee of the trust. 12. Then, there is a further, and to my mind, an insurmountable, difficulty in the way of defendant No. 5 himself. The plaintiffs in the first suit, suit No. 604 of 1957, have nowhere admitted in their plaint the status of defendant No. 5 as a validly appointed member of the managing Committee. In all the averments they have only stated that it is the claim of defendant No. 5 that he is a member of the Managing Committee. In the prayer clause of the plaint, plaintiffs have made it clear that defendant No. 5, who claims to be member of the Managing Committee, be removed from the office which he is stated to hold. It is true that in an affidavit which has been filed on behalf of defendant No. 2 there is, if I may say so, some sort of an imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would show that defendant No. 5 was not recognised as a member. This would, in law, throw and additional burden upon defendant No. 5 to vindicate his status as a member, if it has been denied, as it has been denied by the plaintiffs in their suit, and if the Charity Commissioner has given the decision in the way in which he has given his decision in the appeal; but apart from what has been stated in the affidavit made by defendant No. 5 and in the plaint filed by him in the other suit there is nothing on the record to show that he had been duly appointed by the proper authorities as a member of the Managing Committee. 14. There is a further difficulty in the way of defendant No. 5. Defendant No. 5 says that he was appointed as a President of the Managing Committee on the 5th of September 1956. There is no clear evidence on the record as to when the former President Fonseca was deported. In the plaint filed by the beneficiaries it is stated that he was deported sometime in August 1956; while Mr. Parpia has drawn my attention to another affidavit filed on behalf of defendant No. 2, wherein it has been stated that Fonseca was deported in September 1956. If defendant No. 5 was appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit No. 604 of 1957. Therein he has not mentioned the name of the Secretary at all. It is only for the first time we see that in his plaint he has mentioned that defendant No. 4 was the Secretary of the Managing Committee. Furthermore, defendant No. 4, who is a party-defendant to the earlier suit filed by the beneficiaries and who is also a party to the Notice of Motion taken out in the suit, has not in his affidavit stated that he was appointed as the Secretary of the Managing Committee after the removal of defendant No. 2 from that office. Deft. No. 4 filed his affidavit on 9-4-1957, and in his affidavit he expressly mentions that the fifth defendant was the President of the first defendant Institute, but he does not mentioned the fact that he had been appointed or elected as Secretary of the Managing Committee. This to my mind, seems to be significant and considerably detracts from the truthfulness of the case that is tried to be made out by defendant No. 5 in the plaint filed by him in the other suit. 18. Thus, in the absence of the necessary orders from the appointing authorities so far as Estanoslav Furtado and defendant No. 5 are concerned, it would be difficult for me t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Committee, to discharge its duties as trustees and managers of the defendant trust. I am, therefore, of the view that the learned Judge was perfectly justified in the circumstances of the present case to appoint the Court Receiver for the management of the defendant Institute. 20. Mr. Parpia has then contended that the reliefs which have been claimed for by the plaintiffs in suit No. 604 of 1957 could not be granted, in view of the provisions of Section 47 of the Bombay Public Trusts Act, and if the reliefs could not be ultimately granted to the plaintiffs, then says Mr. Parpia, the appointment of the Receiver, which would have the effect of virtually displacing the lawful trustees, who were in management of the property, could not also be granted even on an application for the appointment of a Receiver under Order XL, Rule 1. It may be noted that, for the purpose of deciding the question that arises in this case, it is not necessary for me to consider whether the Court would be in a position to grant the reliefs that have been prayed for in the suit. Al what I am now concerned with is to consider whether there has been any occasion for the Court to appoint a Receiver for the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr.Parpia contends that this question will be a relevant question, even when the Court is called upon to appoint a Receiver, or to grant an ad interim injunction. It is true that the point of jurisdiction may be regarded as a relevant question even while considering whether the court has jurisdiction to appoint a Receiver or not. But the other question, namely, whether the Court had jurisdiction to entertain the suit or not, cannot in my opinion, be raised in these proceedings. When the Court is called upon to appoint a Receiver under the provisions of Order XL, Rule 1, the Court assumes that the suit, during the pendency of which the appointment of the receiver is sought for, has been properly filed in a Court, which had jurisdiction to entertain it, and it is upon that basis that the Court proceeds to consider the application that may be made before it for the appointment of the Receiver. 23. However, even assuming that this question is a relevant question for my consideration in the present proceedings, I am definitely of the view that the Court had jurisdiction to entertain the suit, and therefore the application for the appointment of the Receiver. It is true that the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any rate, no question arises in regard to any interference with its constitution. If it arises at some future date, if at all it does, it may perhaps will be open to Mr. Desai to agitate that question. For the moment no such question arises. In any event its being asked to be registered under the Trusts Act seems to me no infringement of any principle of private International Law. On the contrary in my humble view the municipal Courts have jurisdiction to see that Foreign Corporation working in its country do it in conformity with local law and not in infringement of it. This argument of Mr. Desai, therefore, avails him not. The observations which have been quoted above do not seem to be relevant for the consideration of the question now before me. What I wish to emphasise is that, even in the application which was decided by the City Court Judge, the finding of the subordinate authorities, namely, the Dy. Charity Commissioner and the Charity Commissioner, to the effect that there was a trust and that trust was a public trust and therefore liable to be registered was upheld. To this extent the findings of the two aforesaid authorities were confirmed in the application, by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 208). The passage is:- Now this charity, as appears from the plaint, is foreign charity. It conducts a hospital in Jaipur State, and it is a well established principle that the administration of a charity depends upon the law, and is controlled by the Court, of the country where the charity is conducted . If, therefore, this is a charity which has been created in this country, it must be controlled by the Court of the country where it is created and where the charity is to be conducted. I have, therefore, no difficulty in holding that the civil court had jurisdiction to entertain the suit and to make the appointment of the Receiver in regard to the affairs of the defendant trust. 25. Then, Mr. Parpia argued mainly by reference to the article of the constitution that the Institution, namely, the first defendant in the earlier suit, was an official Institution. It was a part of Government of Portuguese India. The members of the managing Committee were, in terms of Article 9 of the constitution, to correspond to the authorities of the Government. Therefore, if the civil court were to appoint a Receiver, it would be affecting the rights of the Government of Portuguese Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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