IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933 RFA.No. 28 of 2010() -------------------- OS.9/2009 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANTS/DEFENDANTS 5 TO 7 ------------------------------------------------ 1. KAMAKSHI BALAKRISHNAN, AGED 85 YEARS, D/O.LATE M.NARAYANA MENON, DIRECTRESS, CHINMAYA VIDYAPEETH, WARRIAM ROAD, KOCHI-682 016. 2. MAYA MOHAN, AGED 56 YEARS, D/O.LATE BRIGADIER BALAKRISHNA, PRINCIPAL, CHINMAYA VIDYALAYA, VADUTHALA, ERNAKULAM, KOCHI-682 023. 3. RAMKUMAR MENON, AGED 59 YEARS, S/O.LATE E.R.K.MENON, `PARVATHY NIVAS', DIWANS ROAD, KOCHI-682 016. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ RESPONDENT(S)/PLAINTIFFS & DEFENDANTS 1 TO 4 & DEFENDANTS 8 TO 15:: ------------------------------------------------------------------------------ 1. P.RADHAKRISHNAN, ADVOCATE, AGED 70 YEARS, S/O.LATE A.KUMARA KAIMAL, RESIDING AT MANIKKIRI-M.G.CROSS ROAD, NEAR PALLIMUKKU, ERNAKULAM, KOCHI-682 016. 2. P.V.ARAVINDAKSHAN, AGED 69 YEARS, S/O.LATE VELAYUDHAN, PRESIDENT, CHINMAYA MISSION, ERNAKULAM, RESIDING AT SOUBHADRAM, THEKKUMBHAGAM, TRIPUNITHURA-682 301. 3. CENTRAL CHINMAYA MISSION TRUST, A TRUST REGISTERED UNDER THE BOMBAY TRUST ACT HAVING ITS OFFICE AT SANDEEPANY SADHANALAYA, SAKI VIHAR ROAD, MUMBAI-400 072, REPRESENTED BY ITS CHIEF EXECUTIVE NARAIN BHATIA. 4. CHINMAYA MISSION EDUCATIONAL & CULTURAL TRUST (GREATER COCHIN) HAVING ITS REGISTERED OFFICE AT `SREYAS' SAHODARAN AYYAPPAN ROAD, MANORAMA JUNCTION, ERNAKULAM, KOCHI-682 016, REPRESENTED BY ITS CHIEF SEVAK HAVING HIS OFFICE AT 41/3647, FIRST FLOOR, BLUE BIRD TOWERS,PROVIDEN 5. SWAMI TEJOMAYANANDA, AGED ABOUT 55 YEARS, SANDEEPANY SADHANALAYA, SAKI VIHAR ROAD, PAWAI, MUMBAI-400 072. 6. A.GOPALAKRISHNAN, AGED ABOUT 55 YEARS, S/O.ANANDA NARAYANA IYER, CHIEF SEVAK, BUILDING NO.41/3647, FIRST FLOOR BLUE BIRD TOWERS, PROVIDENCE ROAD, ERNAKULAM, KOCHI-682 018. 7. CENTRAL BOARD OF SECONDARY EDUCATION, `SHIKSHA SADAN', 17, ROUSE AVENUE, NEW DELHI-110 002 REPRESENTED BY ITS SECRETARY. 8. V.A.MOHAMMED ASHRAF, S/O.LATE V.V.ABDUL KHADER, AGED 54 YEARS, RESIDING AT VALIYAVEETTIL HOUSE, JEW STREET, KOCHI-35. 9. JABEEN L.ZACHARIAS, AGED 47 YEARS, W/O.LALICHAN ZACHARIAS, RESIDING AT KAKKANTHOTTIL HOUSE, JAYA NAGAR, MARADU. 10. DR.AJITH KUMAR, AGED 51 YEARS, S/O.N.MADUKAR RAO, RESIDING AT B-INDRAPRAST APARTMENTS, T.D.ROAD, KOCHI-35. 11. B.ANILKUMAR, M.COM. LL.B, FCS., S/O.LATE N.BALAKRISHNA PILLAI, AGED 48 YEARS, RESIDING AT D-9 HNC-QUARTERS, NEWS PRINT NAGAR, KOTTAYAM. 12. SUSHEEL KUMAR PURI, S/O.LATE R.C.PURI, AGED 38 YEARS, G.C.S.I. WEST WATERS, MALOTH ROAD, PERUMANOOR P.O., THEVARA, KOCHI-15. 13. MRS.KRISHNA SREEDHARAN, AGED 54 YEARS, W/O.LATE SREEDHAR, RESIDING AT `SREYUS', 38/1911, PLAKUTTY COLONY, ELAMKULAM ROAD, KOCHI. 14. ANIL K.MENON, AGED 48 YEARS, S/O.M.K.KUTTAPPA MENON, FLAT NO.7A, AMRIT RETREAT, K.P.VALLON ROAD, KADAVANTHRA, KOCHI-20. ADV. SRI.K.RAMACHANDRAN FOR R1 & 2 SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE FOR R3,5 SRI.S.K.MADHU FOR R3,5 SRI.S.SREEDEV FOR R1 & 2 SRI.K.P.SREEKUMAR FOR R4 &6 SRI.M.R.SABU FOR R3 SRI.B.RAGHUNANDANAN FOR R12 SMT.A.SREEKALA (VAIKOM) FOR R12 SMT.BEENA JOSEPH FOR R12 SRI.JOY THATTIL ITTOOP FOR R11 SRI. LIJOY PARACKAL FOR R11 SRI.SREELAL N.WARRIER FOR R12 SRI.A.BALAGOPALAN FOR R8 & 9 SMT.KALA G.NAMBIAR FOR R8 & 9 SRI.DEVAN RAMACHANDRAN FOR R7 SRI.K.M.ANEESH FOR R7 SRI.K.SANTHOSH KUMAR (KALIYANAM) FOR R7 SRI.S.NIKHIL SANKAR FOR R7 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2011, ALONG WITH RFA NOS. 602 OF 2010 &. 630 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. Nos. 28, 602 & 630 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of September, 2011. JUDGMENT These three appeals arise from the judgment and decree in O.S.9 of 2009 before the District Court, Ernakulam, which was a suit under Section 92 of the Code of Civil Procedure. R.F.A.28 of 2010 is by defendants 5 to 7, R.F.A. 602 of 2010 is by defendants 11 and 13 and R.F.A. 630 of 2010 is by defendants 9 and 10 in the suit. 2. The short facts necessary for the disposal of these appeals are as follows: Chinmaya Mission Educational and Cultural Trust (hereinafter referred to as CMECT) was constituted as per a deed dated 17.3.1994 by seven persons. The details and the purpose of the Trust are not very relevant except to mention that they had laudable and noble R.F.A.28/2010 & con.cases. 2 objects. The first defendant in the suit is a Trust registered under the Bombay Trusts Act and the second defendant is a Trust registered under Act 12 of 1955. 3. The plaintiffs having obtained leave under Section 92 of the Code of Civil Procedure instituted O.S.9 of 1990 seeking various reliefs falling within the ambit of the said provision. There were allegations of corruption, nepotism, mismanagement, mal-administration, financial irregularities and several other allegations against some of the defendants. 4. Some of the defendants entered appearance and opposed the suit. 5. It appears that during the pendency of the suit, some of the parties entered into a compromise, which was filed before the court. Since the suit was in a representative capacity, the compromise was published in newspapers as required under Order XXIII Rule 3B(2) read with Order I Rule 8 Sub-Rule (4) of the Code of Civil Procedure. In pursuance R.F.A.28/2010 & con.cases. 3 to the publication, defendants 6 to 14 got themselves impleaded. They filed their objections to the acceptance of the compromise. 6. While things stood so, it appears that defendants 5 to 7 filed I.A.4767 of 2009 in O.S. 9 of 2009 seeking to withdraw from the compromise filed before court. It appears that some of the other defendants, who later got themselves impleaded, also filed objections to the same. Rejecting the various objections, the compromise filed before the court was accepted and a decree was passed in the following terms: “The Governing Board constituted on 17.5.2008 for the Chinmaya Vidyalaya, Ernakulam shall stand dissolved and in its place a Managing Committee as required to be formed under the C.B.S.E. affiliation bye-laws shall take over the management of the said Vidyalaya on or before 28.2.2009. The 4th joint petitioner/2nd defendant shall appoint a managing committee for the Chinmaya R.F.A.28/2010 & con.cases. 4 Vidyalaya, Ernakulam as per C.B.S.E. affiliation bye-laws as per the panel to be submitted by the 1st petitioner/1st plaintiff in consultation with the 3rd joint petitioner/1st defendant. The financial irregularities, malpractices etc. more specifically described in the O.P./plaint in the suit by joint petitions 1 and 2/plaintiffs and matters connected therewith and incidental thereto shall be enquired into by a Committee of 3 persons of integrity to be appointed by the 3rd joint petitioner/1st defendant, from the panel submitted by joint petitioners 1 and 2/plaintiffs. The enquiry by the Committee shall cover the period commencing from 1.4.2002 and the Committee shall file its report within 3 months from the date of its appointment giving findings regarding the role of the defendants, if any, in the matter stated in the O.P./plaint and their recommendations in respect thereof. The recommendations of the Committee shall be binding and enforceable on joint petitioners 3 to 9/defendants subject to law. All expenses in connection with the enquiry shall be met by the Chinmaya Vidyalaya, Ernakulam. R.F.A.28/2010 & con.cases. 5 Till the completion of the enquiry and submission of the report by the three member committee, the Principal of the School section of the Chinmaya Vidyalaya, Ernakulam shall confine her activity only to academic administration, excluding appointments and the senior-most teacher in the Managing Committee, shall perform the functions of the Secretary. The allegations made against the 5th joint petitioner/3rd defendant and 3rd joint petitioner/1st defendant are hereby withdrawn by the 1st and the 2nd joint petitioners/1st and 2nd plaintiffs and no findings need be given against them.” 7. The defendants, already made mention of, have challenged the said judgment and decree on various grounds. It appears that during the pendency of the appeals before this court, some of the defendants before the lower court had filed review petitions, which were also dismissed. 8. Several grounds have been raised in the respective appeals objecting to the acceptance of the R.F.A.28/2010 & con.cases. 6 compromise which was entered into between some of the parties and to which many of the other defendants have objections. According to defendants 6 to 14, the compromise was entered into with ill-motive and to save several erring persons from misdeeds and financial irregularities committed by them. Defendants 5 to 7 sought to withdraw from the compromise raising several legal and other grounds. They are also dissatisfied with the decree passed by the court below. 9. The first respondent in R.F.A.28 of 2010 has a case that the appeal is not maintainable and he seeks to support the compromise decree. 10. Knowing the consequences of the decree, and the impact it could have on a prestigious institution, it seems that various suggestions were made by the court to have the matter settled amicably at various stages. This court was more concerned with the fate of the institution which alone stand to loose as a result of internal bickering R.F.A.28/2010 & con.cases. 7 between some of the parties which gave rise to some disputes between the past and present members of the Managing Committee of the School. It is unfortunate that the issues now raised have been brought to the court, which infact should have been sorted out quietly and amicably. By doing so, the very existence of the School, namely, Chinmaya Vidyalaya, is in peril. 11. After much persuasion and keeping in mind the interests of the institution, various suggestions were made by this court. Though one of the parties is reluctant to accept any of the proposals, this court had to sort out a viable method to give a quietus to the whole issue by making certain modifications to the decree passed by the court below which may be acceptable to all concerned. 12. While defendants 6 to 14 attacked the compromise decree as a method adopted by some of the erring members of the management to escape from the consequences of the findings, that may be entered into by R.F.A.28/2010 & con.cases. 8 the Enquiry Committee, that is to be constituted. Defendants 5 to 7 have other grievances. It is unnecessary to go into the details of the complaints of each of the parties and also the merits of the case because it was felt that certain modifications in the decree now passed by the court below will adequately safeguard the interest of all parties. 13. Suggestions for modification of clauses 2 and 3 of the decree and certain minor modifications in other clauses were put to the parties. Clause 2 of the compromise decree mentions that the Managing Committee is to be constituted from the panel of names submitted by the first plaintiff in consultation with the first defendant who are the first petitioner and third joint petitioner in the joint compromise petition. Suggestion is made for modification of this clause. As regards clause No.3 the serious objection is regarding the Committee to be constituted on the suggestion of joint petitioners 1 and 2 and it is pointed out that that may not be proper. As regards the 5th clause, the R.F.A.28/2010 & con.cases. 9 functioning of the Principal, it is pointed out that the decree now passed curtails the powers of the Principal to a considerable extent and that will cause difficulties in the day to day management or the affairs of the School. 14. In order to avoid any controversy, this court asked the parties to submit a panel of names whom they would wish to be considered to be appointed as members of the Committee to conduct the enquiry as contemplated in the decree. Since the enquiry required a scrutiny of the accounts, it is necessary to include a Chartered Accountant as the third member of the Committee. The parties have suggested various names. It is felt that the members of the Committee which is to conduct the enquiry is to consist of the following members: (i) Mr. Justice K.T.Thomas, who will be the Chairman of the Committee. (ii) Mr. Justice T.V.Ramakrishnan, Member of the Committee. R.F.A.28/2010 & con.cases. 10 It looks appropriate to leave it to the Chairman of the Committee to decide as to who should be the third Member, who as already mentioned needs to be a Chartered Accountant, since the accounts have to be perused. 15. Accepting the suggestions and considering the various aspects, a modified decree is passed as follows: (1) The Governing Board constituted on 17.5.2008 for the Chinmaya Vidyalaya, Ernakulam shall stand dissolved and in its place a Managing Committee as required to be formed under the C.B.S.E. affiliation bye-laws shall take over the management of the said Vidyalaya on or before 28.2.2009. (2) The 4th joint petitioner/2nd defendant shall appoint a Managing Committee for the Chinmaya Vidyalaya, Ernakulam as per C.B.S.E. affiliation bye-law as per the suggestions made by the R.F.A.28/2010 & con.cases. 11 Committee constituted above and from the panel obtained by the 2nd defendant. (3) The financial irregularities, mal-practices and such other irregularities complained of in the original petition may be enquired into by the Committee consisting of Mr.Justice K.T.Thomas and Mr. Justice T.V.Ramakrishnan and the third member to be engaged by the Chairman of the Committee. The Committee may enquire into all the irregularities commencing from the period 1.4.2002 or from such period as the Committee deems fit and submit a report to the second defendant in the suit as early as possible. (4) The recommendations of the Committee shall be binding and enforceable on all the parties to the suit. The expenses in connection with the enquiry shall be met by Chinmaya Vidyalaya, Ernakulam. The remuneration for the various R.F.A.28/2010 & con.cases. 12 members of the Committee are tentatively determined as follows: (i) Chairman (Mr. Justice K.T.Thomas)- Rs.1,25,000/- (ii) Mr. Justice T.V.Ramakrishnan - Rs.1,00,000/- (iii) 3rd Member (Chartered Accountant)- Rs.75,000/- The remuneration shall be paid directly to the members. The second defendant in the suit will be at liberty to take such steps as are necessary in the light of the report submitted by the Committee. (5) Till the completion of the enquiry and submission of the report by the Committee appointed by this court, the Committee may determine as to the actual functions that could be carried on by the Principal of the School of Chinmaya Vidyalaya, Ernakulam for the day to day administration of the School. R.F.A.28/2010 & con.cases. 13 (6) The personal allegations made against the 5th joint petitioner/3rd defendant and 3rd joint petitioner/1st defendant are hereby withdrawn by the 1st and the 2nd joint petitioners/1st and 2nd plaintiffs. The appeals are disposed of as above. P. BHAVADASAN, JUDGE sb.