TMI Blog2020 (8) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... taken without complying with the provisions of the Act. The civil court s jurisdiction cannot be said to be barred under the Law. Before I conclude, let me state few words about the nature of the dispute between the parties. Allegation against the petitioner is that the petitioner allowed an outstation cricketer to play second division cab league for defendant No.1 club though according to the rules of CAB no outstation player is permitted to take part in cricket during tournament on behalf of any club registered under CAB. It is also alleged that by engaging the said outstation cricketer the petitioner compelled the club to spent huge sum of money towards conveyance charges and stay of the said outstation cricketer - Importantly enough, till date CAB did not raise any allegation against defendant No.1 club. On the contrary, the petitioner also did not make his grievance challenging the memorandum of article or any resolution taken by the Board of Directors virtually altering the memorandum of articles or any other action of the defendant No.1 club or its Board of Directors which is prejudicial to him or any class of member or members at large. On the contrary, the allegation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice was bad, illegal and inoperative and could not be given effect to and permanent injunction. However, during the pendency of the suit the petitioner was suspended from his membership with effect from 19th June, 2019. Since the club issued interim suspension order against the petitioner, he withdrew Title Suit No.749 of 2019. On the selfsame date, the petitioner instituted Title Suit No.781 of 2019 challenging the interim order of suspension dated 19th June, 2019 praying for following reliefs: a. Leave under Order II Rule 2 of the Code of Civil Procedure, 1908; b. Decree for declaration that the suspension order dated June 19, 2019 is null and void and direction that the same be delivered up and cancelled; c. Decree for perpetual injunction restraining the defendant No.1 from taking any steps or further steps on the basis of or giving any effect or further effect to the suspension order dated June, 19, 2019; d. Decree for perpetual injunction restraining the defendants from taking any other or further coercive steps against the plaintiff pursuant to notice dated June 12, 2019 and Suspension Order dated June 19, 2019; e. Costs of this suit; f. Any further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y No.1. I have carefully perused the notes of written arguments. 9. Mr. Joy Saha, Learned Senior Counsel for the petitioner submits at the outset that the leaned District Judge, South 24 Parganas by passing the impugned order held that the suit filed by the petitioner is prime facie not maintainable in view of the provision contained in Section 430 of the Companies Act, 2013 read with Section 241 of the said Act. 10. According to Mr. Saha, the dispute between the petitioner and the club arises out of a decision taken by the Disciplinary Committee set up by the Executive Committee of the club recommending the petitioner for suspension of his membership. The action taken by the club, according to the petitioner, was illegal and not maintainable in law. The petitioner claims that his primary membership was suspended by the club without proper disciplinary proceeding and the said order of suspension cannot stand. Therefore, the petitioner filed a suit for declaration and injunction against the opposite parties under Section 9 of the Code of Civil Procedure read with Section 34 of the Specific Relief Act. 11. It is submitted further by Mr. Saha that the Companies Act, 2013 has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner that the proviso to Section 244 states that the tribunal may, on an application made to in this behalf, waive of any of the requirements specified in Clause (a) or (b) so as to enable the members to apply under Section 241 of the said Act. It is needless to say that Section 244 prescribes the minimum number of members of a company who shall have the right to apply under Section 241 of the said Act. According to Mr. Saha the provision contained in the proviso to Section 244 does not prescribe for natural forum to obtain any declaration against the company. It says about a special leave which may or may not be granted by the NCLT. Where the statute provides two forums, viz, (1) natural forum and (2) another forum by special leave which is fully dependent upon the decision of the tribunal, civil courts jurisdiction cannot be held to be exclusively barred. 17. The next limb of argument advanced by Mr. Saha on behalf of the petitioner is that the Board of the Cricket and Football Club passed an order of suspension on 19th June, 2019. The plaintiff instituted a suit challenging the said order of suspension on 21st June, 2019. The application for injunction was not actually hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendant No.1 club in contemplation of disciplinary proceeding for alleged gross misconduct by him. In the said suit the petitioner filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an ad-interim order of stay of operation of the order of suspension it was challenged by him. On refusal of such prayer, the petitioner moved the learned District Judge, South 24 Parganas in miscellaneous appeal. The appeal being dismissed holding the suit not maintainable, the instant revision was filed by the petitioner. 22. At the outset it is contended by Mr. Kar that prior to the institution of Title Suit No.781 of 2019, the petitioner instituted Title Suit No.749 of 2019 challenging the legality and validity of a notice to show cause as to why a disciplinary proceeding would not be initiated against him for violation of the memorandum of articles of defendant No.1 club. In the said suit also the petitioner failed to get an order of injunction and the notice to show cause ultimately culminated into the order of suspension passed in contemplation of disciplinary proceeding. After the order of suspension being passed the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out of, or in relation to winding up of the company, Whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made or such scheme has been submitted, or is submitted, before or after the order for the winding up of the company is made. 26. Title Suit No.781 of 2019 was instituted by the petitioner against a company. Therefore NCLT is the only forum to entertain such suit under Section 280 of the said Act. According to Mr. Kar the learned Appellate Court below committed no jurisdictional error in observing that the remedy of the petitioner could have been available only before the tribunal. The learned Appellate Court below, therefore rightly dismissed the miscellaneous appeal filed by the petitioner and refused to grant interim protection in his favour. Furthermore, during the pendency of the suit the disciplinary proceeding was concluded and final order suspending the petitioner s membership for one year was passed therefore the suit filed by the petitioner was infructuous. It is also submitted by Mr. Kar that no challenge was thrown to the final order of penalty inflicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals (AT) No.133 and 139 of 2017 (Cyrus Investments Pvt. Ltd Ors. vs. Tata Sons Private Limited and Ors). 28. On factual aspect of the matter it is submitted by Mr. Banerjee that the petitioner had unlawfully engaged an outstation player to play for the club in violation of the extant rules framed by the Cricket Association of Bengal and had thus posed the club to a risk of loss of its goodwill and reputation. The petitioner has also siphoned out fund from the company s exchequer by forging and fabricating several documents. There were several other serious allegations against him. The company could not ignore such gross misconduct on the part of the petitioner and initiated disciplinary proceeding upon him after issuing a notice to show cause. According to the opposite parties the action taken by the club and its Board of Directors was a part of indoor management of the club and the learned courts below were fully justified by not interfering with the internal matters of body corporate. In support of his contention Mr. Banerjee refers to a decision of this Court in the case of the Institute of Indian Foundryman Anr. vs. Dr. Navojit Basu and Ors reported in (2014) SCC onlin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or such suit or part of a claim, It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. 33. It is well settled that cause of action and relief claimed in the first suit must be identical with those in the second suit in order to bar the latter in the instant case in am in agreement with the learned Senior Counsel on behalf of the petitioner that the suit is not barred under Order XXIII Rule 1 sub-rule (3) CPC. When the previous suit was filed, the petitioner was not suspended. During the pendency of the said suit the petitioner was suspended therefore the cause of action to challenge an order of suspension arise after institution of Title Suit No.749 of 2019. As the said cause of action arise subsequently the petitioner had every right to institute a fresh suit challenging the order of suspension. 34. It is contended by Mr. Kar, learned Senior Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Act as class action . Clauses A-H of Section 245(1) describes the nature of breach by the company which may be agitated before the tribunal. It clearly reveals that where the affairs of the company is being conducted without following the memorandum of articles or that a resolution is taken violating the memorandum of articles of the company, or similar other provisions prejudicial to the class of members of the company, the same is void being violative of class action . In the instant case the petitioner never agitated any provision of the Companies Act as prejudicial to its members or oppressive in nature. He has challenged the action of the Board of Directors suspending him from the membership of the club. Such action, in my considered view does not follow within the jurisdiction of NCLT. 37. Section 9 CPC gives jurisdiction to try all suits of civil nature excepting those which are expressly or impliedly barred by any other law. A bar to file a civil suit may be expressed or implied. An express bar is whether statue it is contain a provision that the jurisdiction of a civil court is barred, as for example Section 430 of the Companies Act. An implied power may rise w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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