TMI Blog2009 (3) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... avin Pal Singh Bhandari, Defendant No. 9 (hereinafter referred to as Mr. Bhandari ) another member of the Club. The plaintiffs after having came to know about the legal proceedings made further enquiries and it transpired that Mr. Bhandari had been wrongfully representing himself as the General Secretary of the Club and taking actions on his own on behalf of the Club unauthorisedly in an illegal manner. It is contended that Mr. Bhandari was never elected as General Secretary of the Club in 1995. In 1995, when the elections to the Managing Committee of the Club were held, another member Mr. Arvinder Singh was elected as General Secretary of the Club. Thereafter no elections to the Managing Committee of the Club took place till the year 2005. Even in the year 2005, the results of the elections held for Managing Committee of the Club were stayed by orders passed by this court and as such there is no duly elected Managing Committee of the Club since the year 1996. It is further contended that taking undue advantage of this situation, Mr. Bhandari unauthorisedly represented himself as General Secretary of the Club in most illegal and unjustifiable manner. 3. It is averred in the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling upon it to pay the entire arrears of lease money failing which the Trust shall be left with no other option but to terminate the sub lease. Inspite of the said notice, no steps were taken by the Club and accordingly a notice was issued by the Trust on 28th October, 1997 terminating the sub lease between the parties by the end of the month i.e. on the midnight of 30th November, 1997 and further called upon the Club to handover the vacant possession of the entire properties on or before 30th November, 1997. Another notice dated 2nd December, 1997 was issued by the Trust intimating that its possession in the premises after 30th November, 1997 is that of an unauthorized occupant as the Club had failed to vacate the premises inspite of having issued the notice. 6. Since the Club failed to accede to the request made in the legal notice sent by the Trust, a suit bearing No. 518/99 was filed in this court by the Trust against the Club praying for a decree of recovery of possession in respect of the suit property and also for passing a decree for recovery of Rs. 11,60,000/- towards the mesne profits and for damages. 7. The Club in the written statement had alleged that the suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard, the learned Single Judge after considering the merits of the case has given the specific finding in para 10 of the judgment which reads as under: Therefore, in the backdrop of the aforesaid position and within the parameter of the same, I may now proceed to consider the applicability of the said provisions to the facts and circumstances of the present case without forgetting for moment that there is also an application filed by the defendant under Section 114 of the Transfer of Property Act. That the parties have entered into a sub-lease which is dated 23rd September, 1992, is also an admitted position. The said deed is a registered document and one of the conditions of the said sub-lease is that in case the lease money remains unpaid for two consecutive quarters and on account of the breach of any terms of the lease deed, the plaintiff would be entitled to terminate the said sub-lease. One of the relevant aspects which needs consideration at this stage is the plea of the defendant that the plaintiff is divested of the right and title of the suit property. The original perpetual lease for the suit property in favour of the plaintiff was executed by the DLF Universal Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t plaintiffs who are members of the Club are entitled for any relief claimed in the injunction application on the basis of the allegations raised in the suit. Due to urgency of the matter, the present application is being decided even without calling for proper replies on behalf of the defendants. 14. Learned Counsel for the plaintiffs has referred to the decisions reported in S.P. Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs and Ors. AIR 1994 SC 853 para 7 and 8 and Syed Shah Gulam Ghous Mohiuddin Khamesul Qadri and Ors. v. Syed Shah Abdul Har Khamisul Qadri and Ors. AIR 1959 Andhra Pradesh page 212 para 8. 15. The learned Counsel for the Trust has strongly contested the interim application filed by the plaintiffs on the ground that the suit filed by the plaintiffs is an abuse of the process of the court as all the questions raised by the plaintiffs in the present suit as far as merit of the case is concerned have already been decided by the two courts in which the decree has already become final and binding between the parties. Learned Counsel for the defendants has also argued that the plaintiffs have only made the allegations in the present suit that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Bhandari and on 23rd October, 2002 a resolution had been passed by the Club in favour of Mr. Bhandari to appeal against the judgment and decree dated 22nd October, 2002. 17. All the above mentioned circumstances clearly show that the Club and its members were fully aware about the pendency of the suits, passing of the judgment and decree as well as of the appeal filed against the judgment otherwise resolution would not to have been passed on 23rd October, 2002 in favour of Mr. Bhandari to file the appeal against the judgment and decree passed by the court. It further proves from the report of the bailiff that when the warrants of attachment were being executed, 50 to 60 workers obstructed the said proceedings. It does not lie in the mouth of the Club or the members at this stage to contend that the plaintiffs were not was aware about the litigation pending between the parties as well as the judgment and decree passed by the court. In A.L.N. Narayanan Chettiyar and Anr. v. Official Assignee, High Court Rangoon AIR 1941 PC 1993 it is observed that a fraud must be established beyond reasonable doubt. It cannot be based upon suspicion and conjectures. In another case reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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