TMI Blog2018 (1) TMI 1619X X X X Extracts X X X X X X X X Extracts X X X X ..... rises of 50% of the permanent membership and out of this 50% half (i.e. 25% of the entire permanent membership) has been reserved for the UCPs/Green Card Holders and the UCPs/Green Card Holders are considered for this 25% membership on the basis of date of their application. Article 4, lists out the five classes of members, one of which is Permanent members, with which the parties are concerned. Article 7 requires every application for membership to be entered in a Candidate's Book. As per the Club, initially there was only on Candidates Book. Subsequently a separate Candidate's Book was maintained for general applicants in NG category and the UCPs/Green Card Holder applicants. On an objection by some members, once again, a common Candidate's Book is being maintained but a different colour ink is used for entering the details of a general applicant and the UCPs/Green Card Holders (reference drawn to Minutes of meeting dated 17.10.2013) - Article 8 (7) stipulates that the General Committee shall maintain the distinctive character of the Club and regulate the balloting in a manner that the proportion of the members in the Government Category continues to be about half ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reen Card Holder/ UCPs has its own cascading effect because these members would attain permanency at a very young age, therefore, their off-springs would also in-turn get similar benefits. This kind of bye-law/rule will one day turn AOA otiose and are against the interest of public at large as well as Plaintiffs. Admittedly, the Articles do not create a separate class of members or accord priority to any special class of individuals in getting membership, the same has been done only through various meetings - the Green Card Holders / UCPs enjoy virtually all facilities of the Club, except voting rights on any matter affecting the interests or management of the Club. No irreparable loss and injury would be caused to the Green Card Holders / UCPs in case their permanent membership is deferred pending disposal of the Suit. On the other hand, if permanent membership is granted to Green Card Holders / UCPs out of turn then irreparable loss is likely to be caused to the general applicants in the NG category. Balance of convenience is also in favour of the Plaintiffs and in favour of grant of ad-interim injunction. There are no infirmity, in the impugned order dated 30.11.2016, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.7097/2017 (stay), 7099/2017 (additional documents), 8246/2017 (additional document), 13314/2017 (additional document) FAO 103/2017 CM Nos.8143/2017 (leave to appeal), 8144/2017 (stay) and CM(M) 603/2017 1. These two Appeals (FAO 90/207 FAO 103/2017) and the Petition under Article 227 of the Constitution of India (CM(M) 603/2017), impugn order dated 30.11.2016 of the Court of the Additional District Judge, whereby the learned Judge has rejected the application, under Order VII rule 11 of the Code of Civil Procedure (CPC) filed by the Delhi Gymkhana Club Limited (Appellant in FAO No. 90/2017), (hereinafter referred to as 'the Club') and petitioner in CM (M) No.603/2017 and has allowed the application under Order XXXIX Rules 1 2 CPC filed by the respondents - Alok Mehndiratta Others (Plaintiffs in the subject Suit), (hereinafter referred to as 'the Plaintiffs). FAO 103/2017 has been filed by some members of the Club who, though not parties to the Suit, are aggrieved by the directions issued, by the impugned order, on the application under Order XXXIX Rules 1 2 CPC. 2. The Plaintiffs - Alok Mehndiratta Others had filed the subject Suit against the Clu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. The Club was allotted a perpetual lease of a plot of land in the year 1928. As per the Articles of Association of the Club (hereinafter referred to as AOA), 50% of the membership has to be issued to the Government employees while remaining 50% of the membership has to be given to persons, who are not in Government service, referred to as the 'NG Category' As per the Articles of Association, the total membership is 5600 to be divided in 50 : 50 ratio. 5. Since the Club enjoys a very good reputation and is one of the elite Clubs of the city, the membership is much sought after. It is contended by the Plaintiffs that the waiting period for membership in the NG category is now several decades. As per the Plaintiffs, they became aware in the year 2012 that in violation of the Articles of Association, the Management of the Club was granting permanent membership to the children of the existing Members, who were granted 'User of Club Premises Pending Election' Status (hereinafter referred to as the UCP Status) and had applied for membership much after the date of the application by an applicant in the NG category. It is contended that the children of the existing Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Clause 7 of the Articles of Association, each application for membership has to be entered in the Candidate's Book and since the dependent children of the Members have to also apply for membership, their names are also required to be entered in the Candidate's Book as on the date of their application. It is contended that there is no clause in the Articles of Association providing for a separate Candidate's Book for the dependent children of permanent members or for giving out of turn preference to the applications of the dependent children over and above the applications of the General applicants in the NG Category. However, in practice, contrary to the Articles of Association, the Management has been giving precedence to the Green Card Holders/UCPs and granting them permanent membership in the NG category over and above the General applicants in the NG category entered in the Candidate's Book. The consequence of which is that the General applicants in the NG category are illegally superseded for membership. As an example, it is contended that a General applicant in the NG category entered in the Candidate's Book, as far back as in 1977, has been supersed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, as Plaintiffs became permanent members of the Club in different years commencing from the year 2001 onwards and the Suit has been filed in the year 2014, beyond the prescribed period of limitation. 14. It is contended that the Plaintiffs were aware that the Green Card Holders/UCPs were being admitted as permanent members of the Club in accordance with the Byelaws approved by the General Committee on 04.01.1964 and ratified by the subsequent General Committees. All decisions and information are duly circulated to all Members and also displayed on the Notice Board of the Club in a very transparent manner. 15. It is contended that Club is governed by the Memorandum and Articles of Association and the Byelaws, as made by the General Committee from time to time. Further, it is submitted that grant of membership is an internal affair of any private Club and is governed by its Rules and Byelaws. It is submitted that the General Committee, in its Meetings held on 22.05.1984 and 04.06.1984, took a decision to grant membership to sons and daughters-in-laws of members under the non-Government category in the ratio of 20% of vacancies, which was further increased to 25% by the Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of facts mentioned in the plaint. The learned Judge held that the question of limitation is a mixed question of law and fact and from the reading of the plaint in entirety, serious dispute is raised in the plaint with regard to cause of action and such dispute could only be resolved after trial. The learned Judge accordingly rejected the application under Order VII Rule 11 CPC. 19. For the purposes of determining whether a Planit discloses a cause of action or not. The plaint alone has to be considered. The defence taken in the Written Statement is not to be considered. What is to be seen is as to whether the plaint read as a whole, discloses such facts as are necessary to establish that cause of action accrues in favour of the Plaintiff. Neither is the veracity of the averments in the Plaint to be examined nor is the strength of the case of the Plaintiff to be tested at the time of consideration of the application under Order 7 rule 11. The Plaint has to be read with a demurrer. 20. The objections taken by the Club are that the Suit is ex-facie barred by limitation, does not disclose any cause of action and bad for non-joinder of necessary parties. 21. As noticed above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation made by son, of a permanent member on a particular date can take precedence over applications for permanent membership so pending on that date. 9. In practice, however, over the last many years, the management of the Defendant; Club has been acting malafide in complete contravention of the AOA, In as far as the NG category is concerned. The management has been illegally Inducting Green Card holders/UCPs as permanent members in the NG category by giving them wrongful preference over the general applicants in the NG category entered into the Candidate Book, The consequence being that, for example, a general applicant in the NG category entered into the Candidate Book in 1977 has been illegally superseded for membership by Green Card Holders / UCPs who have applied for permanent membership much later in the year 1992. A few instances of the aforesaid illegal practices of the management of the Defendant Club are enlisted below: ***** ***** 12. The general applicants in the NG category suffer double jeopardy. On one hand they are being granted membership, if at all, only after awaiting period of 35 to 40 years leaving hardly any time for them to enjoy the facilities of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grant of permanent memberships in the NG category. The cause of action arose in the beginning of year 2012; when for the first time the Plaintiffs became aware of the illegal Practices of the Defendant Club. Besides various other dates, the cause of action in this regard has arisen on 3.8.2012 when- 5 UCPs were granted permanent membership in precedence to' prior regular applicants in the NG category. The cause of action has also arisen on all dates when, through Emails, Green Card Holder letters and representations, the Plaintiffs called upon the management of the Defendant Club to desist from its illegal violation of the AOA in regard to the grant of permanent memberships in the NG category. In this regard, besides other dates, the cause of action arose on 6.8,2012, 1,12.2012, 6.1.2012, 28.6.2012, 2.7.2012, 24,7,2012, 29,7.2012, 7.8.2012, 25.8.2012, 2.9.2012 and ,13.9.2012, The cause of action further arose on 4.4.2013 when the Plaintiffs sent a legal notice through their advocates to the. Defendant Club, raising all the issues stated in the present Plaint,' and on 18.5.2013, when the Defendant Club issued an evasive response, to the above legal notice, failing to add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary parties or not, would be examined by the court, if so called upon, at the appropriate stage. If held to be necessary parties, then the question would arise as to whether any order passed in their absence would affect their rights, further, the consequences of their non-impleadment would follow. For the purposes of consideration of the subject application, the same is not germane. Accordingly, I find no infirmity in the impugned order, rejecting the application under Order VII rule 11 CPC. 26. With regard to the application under Order XXXIX Rules 1 2, the learned Judge after adverting to various clauses of the Articles of Association, restrained the Club from granting out of turn permanent membership to the Green Card Holders/UCPs and directed that the permanent membership granted after institution of the Suit would be subject to the outcome of the Suit. With regard to the prayer of the Plaintiffs that their children be granted the status of the UCPs/Green Card Holders, the learned Judge rejected the same. 27. For resolving the said controversy, it may, at this juncture, be expedient to refer the relevant Articles of Association as well as the Minutes of the Meeti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absentee dependent children, a member shall pay ₹ 20/- p.m. for each child. (Extraordinary General Meeting dated 22nd July, 2000) (3b) On reaching the age of 21, the son of a member having previously used the Club under Article 13 (3a) must apply to become a full member, should he wish to continue to use the Club. (3c) On reaching the age of 21, the unmarried daughter of a member may use the Club under Article 13 (3a) during such time as she lives with her parents............ 33. Article 16 reads as under:- No member other than a permanent member shall have the right of attending meetings of the Club, or of voting on any matter affecting the interests or management of the Club. 34. Minutes of the Meeting of the General Committee dated 31.03.1978 inter alia read as under:- 6. Special Meeting of the General Committee : Minutes of the Special Meeting of the General Committee held on 15th March, 1978, were confirmed, subject to the following:- ***** ***** Item-2 MEMBERS‟ SONS - AUTOMATIC USER OF THE CLUB- As regards Members‟ sons being extended automatic use of the Club, the following decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son, they will be invited to an At Home on reaching the age of 25 or after their normal waiting period, whichever is earlier. iv. SONS-IN-LAW On a member‟s daughter getting married, the son-in-law will be given UCP in case by that time the daughter has not become a Lady Subscriber in her own right. He would, however, have to apply within one year of his marriage and on applying his seniority will reckon from the date his wife applied for lady subscribership. Note: In the case of a member‟s son, daughter and son- in-law while they will be put in the separate list being maintained for this category, their name will also be put in the category to which they belong and they will be called up for membership in their turn, whichever comes earlier. 36. Circular dated 22.05.1984 reads as under:- NOTICE SUBJECT : Accelerated Conversion of sons/son-in-law UCPs as Permanent Members 1. The General Committee has decided to liberalise the existing procedure to accelerate, in a phased manner the conversion of present UCP Sons and Sons-in-law in the Non-Government category as Permanent Members of the Club. 2. Starting with the February, 1984 At Home , 20% of the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manent membership and out of this 50% half (i.e. 25% of the entire permanent membership) has been reserved for the UCPs/Green Card Holders and the UCPs/Green Card Holders are considered for this 25% membership on the basis of date of their application. 41. Article 4, lists out the five classes of members, one of which is Permanent members, with which the parties are concerned. Article 7 requires every application for membership to be entered in a Candidate's Book. As per the Club, initially there was only on Candidates Book. Subsequently a separate Candidate's Book was maintained for general applicants in NG category and the UCPs/Green Card Holder applicants. On an objection by some members, once again, a common Candidate's Book is being maintained but a different colour ink is used for entering the details of a general applicant and the UCPs/Green Card Holders (reference drawn to Minutes of meeting dated 17.10.2013). 42. Article 8 (7) stipulates that the General Committee shall maintain the distinctive character of the Club and regulate the balloting in a manner that the proportion of the members in the Government Category continues to be about half. 43. Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... list cannot be prima facie held to be in accordance with the spirit of AOA which do not recognize the categories of Green Card Holder / UCPs. Further, grant of permanent membership on priority basis to Green Card Holder/ UCPs has its own cascading effect because these members would attain permanency at a very young age, therefore, their off-springs would also in-turn get similar benefits. This kind of bye-law/rule will one day turn AOA otiose and are against the interest of public at large as well as Plaintiffs......... 49. I do not find any infirmity in the prima facie view taken by the learned judge and in the exercise of discretion in passing an ad- interim order injunction order. Admittedly, the Articles do not create a separate class of members or accord priority to any special class of individuals in getting membership, the same has been done only through various meetings. 50. Further, as noticed above, the Green Card Holders / UCPs enjoy virtually all facilities of the Club, except voting rights on any matter affecting the interests or management of the Club. No irreparable loss and injury would be caused to the Green Card Holders / UCPs in case their permanent member ..... X X X X Extracts X X X X X X X X Extracts X X X X
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