IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-09-2011 CORAM : THE HONOURABLE MRS. JUSTICE R. BANUMATHI and THE HONOURABLE MR. JUSTICE B. RAJENDRAN O.S.A. Nos. 202, 203 and 204 of 2011 and M.P. Nos. 1 to 1 of 2011 1. N. Balaraja BMC Medicals 881, Poonamallee High Road Chennai – 600 084 2. S. Chandramohan Sri Gupta Medicals T.V.K. Nagar .. Appellants in all the Chennai – 600 082 three appeals Versus M/s. The Chemist and Druggist Association rep. By its Secretary Mr. T. Natarajan having its Registered Office at No.6, Third Floor, Bhattad Towers No.30, West Cott Road .. Respondent in all the Royapettah, Chennai – 600 014 three appeals Appeals filed under Order 37 Rule 9 of O.S. Rules read with Clause 15 of Letters Patent against the common Order of this courtdated 27.04.2011 made in Original Application Nos. 8, 9 and 10 of 2011 in C.S. No. 1 of 2011. For Appellants : Mr. S. Elambarathi for Mr. K.J. Rebello For Respondent : Mr. S.S. Rajesh COMMON JUDGMENT B. RAJENDRAN, J These three Original Side appeals are filed by the defendants/appellants against the common order dated 27.04.2011 passed by the learned single Judge in Application Nos. 8, 9 and 10 of 2011 in C.S. No. 1 of 2011. 2. The suit in C.S. No. 1 of 2011 was filed by The Chemists and Druggist Association, hereinafter referred to as 'Association' praying for (i) a permanent injunction restraining the defendants, their men, agents, servants, representatives from in any way interfering with the day to day affairs of the association (ii) for https://hcservices.ecourts.gov.in/hcservices/ permanent injunction restraining the defendants, their men, agents, servants, representatives from in any way claiming to be representative of the plaintiff association to any of the members of the association or the general public or the District, State and National body (iii) For permanent injunction restraining the defendants, their men, agents, servants, representatives from in any way using the plaintiff associations' letter head, by claiming himself to be the Chairman of the action committee. 3. Pending suit, the association has filed three applications namely Original Application Nos. 8 to 10 of 2011. O.A. No. 8 of 2011 has been filed by the Association for grant of an ad-interim injunction restraining the defendants, their men, agents, servants, representatives from in any way claiming to be representative of the plaintiff association to any of the members of the Association or the general public or the District, State and national body pending disposal of the suit. 4. O.A. No. 9 of 2011 has been filed for grant of an ad- interim injunction restraining the defendants, their men, agents, servants, representatives from in any way using the plaintiff association's letter head, by claiming himself to be the Chairman of the Action Committee pending disposal of the suit. 5. O.A. No. 10 of 2011 has been filed praying for grant of an ad-interim injunction restraining the defendants, their men, agents, servants, representatives from in any way interfering with the day to day affairs of the association pending disposal of the suit. 6. All these three applications were taken up together and by a common order dated 27.04.2011, the learned single Judge, after hearing both sides, granted an order of interim injunction as prayed for in the three applications. Aggrieved by the same, the present Original Side Appeals have been filed by the defendants/appellants. 7. According to the defendants/appellants, they are members of the plaintiff association. The suit, as filed by the association against them, is not maintainable in view of the fact that the association is not a registered association and it is an unregistered society. Therefore, the association cannot sue the office bearers, being the defendants/appellants, in their individual capacity. According to the defendants/appellants, the suit itself had been filed to stiffle the protest made by them against the misdeeds of one Arul Kumar, General Secretary of the Tamil Nadu Chemist and Allied Distributors Alliance Limited. The association is of course affiliated to Tamil Nadu Chemist and Allied Distributors Alliance Limited. The said Arul Kumar misappropriated funds of the Association for incorporating a company by misusing his official position and also issued Circulars to manufacturers of drugs, which was condemned by the Monopoly and Restrictive Trade Practices Commission by its order dated 02.09.2005. The said Arul Kumar, General Secretary of the Association, by misusing his official position has devised plans to throw the defendants/ appellants out of the association with the help of the executive committee members. In fact, action was contemplated against the erring officials at the instance of the defendants/appellants, but even before that they were https://hcservices.ecourts.gov.in/hcservices/ removed by the executive committee, followed by the general body meeting, after filing the suit. According to the defendants/appellants, they were not expelled from the association and therefore, the learned single Judge ought not to have granted interim injunction in favour of the association and prayed for setting aside the order of the learned single Judge. 8. According to the plaintiff/respondent, the association is a registered body and the the appellants were members of the association. It is no doubt true that the first appellant was the erstwhile member of the association and the second appellant was the treasurer during the period 2005-2007. But the respondent would mainly contend that after completion of their tenure, the defendants/appellants have started a parallel association under the same name and thereby created confusion among the members of the plaintiff association. Further, under the pretext of initiating action against the general secretary of Tamil Nadu Chemist and Allied Distributors Alliance Limited, the defendants/ appellants have misused the letter head of the plaintiff association by printing the name of the first appellant as Chairman of the Action Committee. As the appellant had sent letters to other members in the District on 20.10.2010, the association sent a letter dated 21.10.2010 not to attend or represent the executive committee meeting of the association, which was scheduled to be held on 24.10.2010. But inspite of that letter, they have attended the executive committee meeting and created problems. Therefore, a show cause notice dated 01.11.2010 was issued and the Executive Committee meeting was also held on 10.11.2010 in this regard. As per the resolution passed in the executive committee meeting, it was unanimously resolved to remove the appellants from the primary membership of the association. As per the bye-law of the association, the appellants were asked to resign. As they did not resign and in the meanwhile started issuing letters, it has necessiated the association to file the suit. Subsequently, after filing the suit, as per the bye-laws, a general body meeting was convened on 23.01.2011 and in that meeting, by an unanimous resolution, the appellants were removed from the primary membership of the association and the appellants have not chosen to challenge their removal from the association till date. The learned single Judge, considering the fact that the appellants were removed from their primary membership in the general body meeting convened on 23.01.2011 and taking note of the other facts and circumstance of the case, rightly granted interim order and the same need not be interfered with. 9. We have heard the counsel for both sides. The contention of the appellants in this appeal is that the plaintiff association is not a registered association and therefore, the suit, as filed by the association against them, is not maintainable. Such a contention of the appellants is unsustainable. Even before the learned single Judge, the association produced the certified copy of the registration certificate issued way back in the year 1945. The appellants are not able to show that the registration of the association stood cancelled or the association has become defunct. Unless the appellants are members of the association, they will not be eligible to become a member of the execuutive committee in the Tamil Nadu Association. Even in the counter affidavit, the plaintiff https://hcservices.ecourts.gov.in/hcservices/ association has stated that they were affiliated to Tamil Nadu Chemist and Druggist Association and therefore, it is not open to the appellants to advance such an argument that the plaintiff association is not a registered association. In fact, the learned single Judge considered this aspect on the basis of certificate of registration produced by the association. So long as the appellants are unable to prove that the certificate is not valid or the registration stood cancelled subsequently, such an argument is not open to the appellant. The plaintiff association also produced the bye-laws of the association and also the certified copy of the certificate of registration issued in the year 1995 and dated 26.04.1945. This was also referred to by the learned single Judge. Further, it is seen from the records that as against the judgment passed in O.S. No. 7207 of 2006 dated 30.01.2009 on the file of the City Civil Court, Madras, the association has already filed A.S. No. 225 of 2010 on the file of the Additional Judge, City Civil Court, Madras and the same is pending. Under those circumstances, the question of non- registration, as raised by the appellants, is unsustainable and the same is hereby rejected, and rightly so by the learned single Judge. 10. The next important point raised by the appellants was the plaintiff association only attempted to safeguard and support Mr. Arul Kumar, Secretary of the Tamil Nadu Association. The appellants have also raised serious allegations as against the said Mr. Arul Kumar, but the same were not considered by the learned single Judge. Further, only in order to curtail the rights of the appellants from raising their voice against the said Arul Kumar, at the instigation of the said Arul Kumar, the appellants were removed from the association. In this context, it is worthwhile to mention that even before the executive committee was called for, the appellants were informed by the association not to attend the executive committee of the Tamil Nadu Association, but defying that, they have attended the meeting and created problems. Thereafter, a show cause notice was issued to the appellants and thereafter, the executive committee meeting was convened on 10.10.2010. In the executive committee meeting, a resolution was unanimously passed to remove the appellants from their primary membership. It is pertinent to point out here that the appellants were also served with a notice dated 01.11.2010 regarding the decision taken in the executive meeting held on 10.10.2010. The agenda in the executive committee meeting relates to the misconduct attributed against the appellants. As per document No.10 namely minutes of the meeting held on 10.10.2010 in the executive committee, it was resolved to remove the appellants from their membership and that was also duly communicated to them under document No.11. Document Nos. 12 and 13 relates to the proof of service of the letters on the appellants. 11. As per the bye-laws of the association, if a resolution was passed by the executive committee removing a member, he or she will be asked to resign and if he or she did not resign, then the matter will be referred to the general body meeting. In this case, after convening the executive committee meeting passing the resolution, the appellants were asked to resign, but they did not resign. Therefore, a general body meeting was convened in which 2/3rd members unanimously agreed for removal of the appellants from their post. https://hcservices.ecourts.gov.in/hcservices/ 12. It is evident that the plaintiff association has complied with and adhered to all the formalities before removing the appellants from their post. As rightly pointed out by the learned single Judge, though the general body meeting was convened after filing the suit, the plaintiff association has complied with all the formalities before convening the general body meeting and the suit was filed by the association when the appellants have acted against the interest of the association. In fact, even during the proceedings, the appellants have admitted that they have started a parallel association. Therefore, on the date of filing of the suit, as rightly pointed out by the learned single Judge, the appellants are not members of the plaintiff association or atleast from 23.01.2011, the date on which general body meeting was convened in which the removal of the appellants was ratified. It is also pertinent to point out that till date, the appellants have not chosen to challenge their removal. Under those circumstances, when the appellants claim themelves to be the members of the plaintiff association or action committee to utilise the name of the association in dealing with the general Secretary, definitely, it will create problems in the functioning of the association. On the contrary, the appellants themselves have admitted that they have started a parallel association and therefore, it will be always open for the appellants to agitate their right, if any under the name of their own association and not in the name of the plaintiff association as action committee members or otherwise. The appellants cannot also use the letter head or utilise the name of the plaintiff association or sign letters or correspondence as action committee members once they were removed from their primary membership. Considering the admission made by the appellants themselves that they have started a parallel association and that even before filing the suit, in the executive committee meeting, they were removed which was also subsequently ratified in the general body meeting convened on 23.01.2011, the learned single Judge granted the interim order in favour of the plaintiff association. The appellants were unable to put forward any case to say that the order passed by the learned single Judge has in any way put them to irreparable loss and injury whereas the plaintiff/respondent has made out a prima facie case for grant of an order of interim injunction and the balance of convenience lies only in their favour when admittedly the appellants have no right to be even a member of the plaintiff association. Therefore, we do not find any reason to interfere with the order passed by the learned single Judge. 13. In the result, we decline to interfere with the common Order dated 27.04.2011 passed by the learned single Judge in Original Application Nos. 8, 9 and 10 of 2011 in C.S. No. 1 of 2011 and the Original Side Appeals are dismissed. No costs. Consequently, connected miscellaneous petitions ae closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ rsh To The Sub Assistant Registrar, Original Side, High Court, Madras. + 3 ccs to Mr.S.S. Rajesh, Sr.60889, 60890, 60890 + 2 ccs to Mr.K.J Rebello, Sr.60947, 60967, 60948 OSA Nos. 202 to 204 of 2011 SJ(CO) Eu 18.10.11 https://hcservices.ecourts.gov.in/hcservices/