dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION SIDE CIVIL JURISDICTION APPEAL APPEAL APPEAL FROM ORDER NO.22 OF 2009 FROM ORDER NO.22 OF 2009 FROM ORDER NO.22 OF 2009 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. OF MOTION NO. OF MOTION NO. OF OF OF 2008 2008 2008 IN IN IN S.C. S.C. S.C. SUIT STAMP NO.1511 OF 2008 SUIT STAMP NO.1511 OF 2008 SUIT STAMP NO.1511 OF 2008 ALONG ALONG ALONG WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO.22 OF 2009 APPLICATION NO.22 OF 2009 APPLICATION NO.22 OF 2009 Charu K. Mehta of Mumbai, adult Indian Inhabitant Residing at Usha Kiran, 18th Floor, 15, Carmichael Road, Mumbai 400026. Appellant/ Plaintiff Vs. 1. Vijay K. Mehta 2. Nanik Rupani 3. Vijay Choraria of Mumbai, adult Indian Inhabitant having their office at Lilavati Hospital & Research Centre, A-791, Bandra Reclamation, Bandra (West),Mumbai 400050. Respondents/ Defendants Mr.Navroz Seervai, Sr.Counsel with Mr.Akhil Sibal with Mr.Pranav Badhekar along with Shane Sapeco, Advocates i/b.M/s.Hariani & Co. for the Appellant. Mr.Iqbal Chagla, Sr.Counsel with Mr.Pravin Samdani with Lynn Pereira with Kunal Vajani, Advocates i/b. M/s.Wadia Ghandy & Co. for Respondent No.1. Mr.Nikhil Sakhardande i/b.M/s.Dhruve Liladhar & Co. for Respondent No.3. ( 2 ) CORAM CORAM CORAM : BILAL NAZKI & : BILAL NAZKI & : BILAL NAZKI & ANOOP ANOOP ANOOP V.MOHTA,JJ. V.MOHTA,JJ. V.MOHTA,JJ. DATE DATE DATE : 21/03/2009. : 21/03/2009. : 21/03/2009. JUDGMENT JUDGMENT JUDGMENT (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) (Per Anoop V. Mohta,J.) This is an Appeal from an ad-interim Order from Notice of Motion of 2008 in a pending Suit bearing S.C.Suit Stamp No.1511/2008 before City Civil Court, Mumbai between the parties. 2. Heard finally by consent of the parties. 3. The basic events as averred are as under: . On 05.07.1978 Late Shri Kirtilal Mehta (father-inlaw of the Appellant) by virtue of Trust Deed settled a Public Trust known as Lilavati Kirtilal Mehta Medical Trust ("the Trust"). As per the Trust Deed under Clause 16, there are only three permanent Trustees for life namely Kishor K. Mehta, Charu K. Mehta and Rekha H. Sheth of the said Trust. 4. In or about 1990, the said Trust commenced the construction of Lilavati Hospital and Research Centre ("the Hospital"). In or about 1996 the Hospital became functional. ( 3 ) 5. The present Suit has been filed by the plaintiff in her capacity as a Permanent Trustee appointed under Indenture of Trust (hereinafter referred to as "the Trust Deed") dated 05.07.1978 settled by one Late Shri Kirtilal Manilal Mehta (hereinafter referred to as "the Settlor"). The plaintiff in the present suit has restricted the claim only to the extent of the rights exercised by Defendant No.1 under Clause 17 and 20 of the Deed of Trust dated 5th July, 1978 regarding powers to appoint Trustee or Trustees of the Lilavati Kirtilal Mehta Medical Trust (hereinafter referred to as "the said Trust") 6. As alleged, Defendant No.1 claims to be a Permanent Trustee of the said Trust who is acting against and detrimental to the interest of the Trust which is more elaborately explained hereinafter. The Plaintiff does not admit that Defendant No.1 is a Permanent Trustee as falsely claimed by him. Defendant Nos. 2 and 3 are two of the purported Trustees who have been wrongfully and illegally appointed by Defendant No.1 in excess of his powers to appoint 5 Trustees under Clause 20 of the Deed of Trust dated 5th July, 1978. ( 4 ) 7. It is alleged that from the year 2001-2005, respondent no.1 started a systematic plan of removing the other Trustees being the family members of late Kirtilal Mehta from the said Trust. 8. In or around 2003 and onwards, the plaintiff received various complaints from several persons against respondent no.1 and others that they were siphoning off funds from the Trust and mismanaging the affairs of the Trust. 9. On 29.09.2004, respondent no.1 got an order from the Assistant Charity Commissioner for removal of Shri Kishor Mehta, the husband of the Appellant as Trustee of the said Trust on the ground that he was away from India for a period exceeding six months without the permission of the Charity Commissioner. This was subsequently set aside by the Hon’ble High Court. 10. On and from 2004, respondent no.1 started appointing Trustees of his choice and people who could act as surrogates for furthering his intention of perpetrating fraud and siphoning large monies from the Trust. 11. It is alleged that in 2006, the forgery and ( 5 ) fabrication of documents by respondent no.1 appointing himself as a Permanent Trustee in the year 1995 came to the knowledge for the first time of the Appellant and her family. 12. On 09/11/2006, the Appellant filed Application against respondent no.1 and others under Section 41-D of the Bombay Public Trusts Act, 1950 ("the BPT Act") in November, 2006 for the reasons as stated thereunder. There are various matters pending between the trustees and the Trust in various Courts till this date. 13. On 07/05/2008, nearing conclusion of hearing of 41D application before the Joint Charity Commissioner, respondent Nos. 2 and 3 were appointed as Trustees under Clause 20 of the Trust Deed by respondent no.1. Respondent no.1 has appointed respondent nos. 2 and 3 as Trustees as alleged to be in violation of the mandate of Clause 20 of the Trust Deed dated 5th July 1978. As alleged, respondent no.1 by appointing respondent nos. 2 and 3 has exceeded the powers and appointed more than 5 Trustees. 14. On 08/05/2008 the change report of respondent nos. 2 and 3 are filed with the Assistant Charity ( 6 ) Commissioner and is pending adjudication. 15. On 03/06/2008, the Joint Charity Commissioner passed an order in Application No.17 of 2006 under Section 41 D of the BPT Act and framed serious and grave charges against respondent no.1 and others for committing various acts of misfeasance, malfeasance, breach of trust, etc. The learned Joint Charity Commissioner further restrained the Trustees from taking any policy decisions and from entering into any financial transaction with regard to the said Trust without the approval of the Joint Administrators. 16. On 08/07/2008, appointment of respondent nos. 2 and 3 as Trustees was ratified subsequently by passing Board Resolution after a gap of two months. 17. On 11/07/2008 and 15/07/2008 the Hon’ble High Court has been pleased to set aside the order dated 3rd June, 2008 passed by the learned Joint Charity Commissioner and remanded back the matter to Joint Charity Commissioner for passing fresh interim orders in accordance with law. The Hon’ble High Court has confirmed the serious and grave charges framed by the Joint Charity Commissioner. ( 7 ) 18. On 23/07/2008 the Joint Charity Commissioner passed fresh interim orders in Application No.17 of 2006 and thereby restrained respondent no.1 and others from taking any policy decision and entering into any financial transactions without the approval of the Joint Administrators. 19. On 30/07/2008 the Appellant apprehending that respondent no.1 in exercise of powers under Clause 17 and/or clause 20 of the Trust Deed would appoint more Trustees and thereby he would operate and/or through the surrogate Trustees so appointed by him and continue with mismanagement and misappropriation of the Trust funds. In view of the aforesaid circumstances to stop any further appointments of the new Trustees under Clause 17 and/or clause 20 by respondent no.1 and in view of the fact that respondent no.1 has exceeded his limits under clause 20 of the Trust Deed in appointing further Trustees, the appellant filed S.C.Suit (St) No.1511 of 2008 in the Hon’ble Bombay City Civil Court (Dindoshi Branch). 20. On 31/07/2008 the appellant moved a motion in the above mentioned suit for urgent ad interim reliefs. The learned Judge, however, refused to grant ad interim reliefs to the appellant. ( 8 ) 21. Therefore, the appellant preferred an Appeal from Order No.22/2009 in the High Court. By an order dated 1st September, 2008 in Civil Application Stamp No.18651 of 2008, a Single Judge of this Court, pending Appeal, passed the following operative order: "1. Rule in the Civil Application made returnable on 20th October, 2008. Mr.Samdhani and Mr.Sakseria on instructions from their respective advocates waive service of Civil Application on behalf of the respondents. 2. Pending the hearing of the Civil Application, respondent no.1 is restrained from appointing more than five trustees in exercise of his powers under Clause 20 of the deed and respondents no.2 and 3 are restrained by an order of injunction from functioning as trustees of Lilavati Kirtilal Mehta Medical Trust. 3. Mr.Seksaria, on behalf of respondents no.2 and 3 applies for stay of operation of order. Since, it is prima-facie held that respondents no.2 and 3 could not have been appointed as trustees by respondent no.1, the application for stay is rejected." As desired by the Apex Court, the main Appeal is taken up for hearing by this Division Bench. 22. It is important to note the basic prayers of the pending Suit which reads thus: "(a) To declare that Defendant No.1 is not authorized and/or entitled and/or empowered to exercise any powers regarding appointment of Trustee/s under Clauses 17 and 20 of the Trust Deed ( 9 ) dated 5th July, 1978, in the alternative, (b) To declare that the Defendant No.1 can appoint not more than five Trustees as per clause 20 of the Trust Deed dated 05.07.1978 in relation to Lilavati Kirtilal Mehta Medical Trust. (c) To declare that appointment of Defendant Nos. 2 and 3 as Trustees of Lilavati Kirtilal Mehta Medical Trust by Defendant No.1 is in excess of the rights exercised by Defendant No.1 under clause 20 of the Trust Deed dated 5.7.1978 and that the appointment of Defendant nos. 2 and 3 as purported Trustees illegal, bad in law, null and void. (d) To pass an order and Permanent injunction against the Defendant No.1 thereby restraining him from in any manner appointing any further Trustee/s in whatsoever capacity under clause 17 and/or clause 20 of the Trust Deed dated 05.07.1978. (e) To pass an order and permanent injunction restraining Defendant Nos. 2 and 3 from acting as Trustees of the said Trust. (f) Pending the hearing and final disposal of the present Suit, the Defendant No.1 be restrained by an order and temporary injunction of this Hon’ble Court from exercising any powers under the Deed of Trust dated 5trh July, 1978 and/or appointing any Trustee/Trustees of the Lilavati Kirtilal Mehta Medical Trust. (g) Pending the hearing and final disposal of the suit Defendant Nos. 2 and 3 be restrained by an order and Temporary injunction of this Hon’ble Court from in any manner acting as Trustees of Lilavati Kirtilal Mehta Medical Trust. (h) Ad-interim reliefs in terms of prayer clause (e) & (f) above be granted. ( 10 ) (i) For such and other further reliefs as the nature and circumstances may require." 23. The prayers of the Notice of Motion are as under: (a) Pending the hearing and final disposal of the present Suit, the Defendant No.1 be restrained by an order and temporary injunction of this Hon’ble Court from exercising any powers under the Deed of Trust dated 5th July, 1978 and/or appointing any Trustee/Trustees of the Lilavati Kirtilal Mehta Medical Trust. (b) Pending the hearing and final disposal of the Suit Defendant Nos. 2 and 3 be restrained by an order and Temporary injunction of this Hon’ble Court from in any manner acting as Trustees of Lilavati Kirtilal Mehta Medical Trust. (c) Ad-interim reliefs in terms of prayer clause (a) & (b) above be granted. (d) That costs of this Notice of Motion and of the Order to be made thereon be provided for; and (e) For such other and further reliefs as the nature and circumstances of the case may require, be granted." 24. The Suit is for declaration and interpretation of clauses 17 and 20 of Trust Deed dated 5th July, 1978 and interim relief/injunction. The prayers of interim relief/injunction are based upon the same. These clauses need to be interpreted first before granting any declaration or injunction in favour of the Appellant. It is a case of interpretation of clauses of the documents. The whole documents need to be ( 11 ) considered along with surrounding circumstances to understand and to give clear meaning to those clauses including the intention and object of the documents. We need to be considered the intent and object of the clauses independently and jointly also. This document is of the year 1978. Therefore, rival pleadings with other documents and evidence with regard to the same is necessary to be gone into in detail. In these circumstances in our view, the grant of only interim relief by interpreting these clauses at such interlocutory stage without due trial, will affect the rights of both the parties. 25. Even the maintainability of the Suit is raised in defence in view of Section 50/80 of the BPT Act. Therefore, we are of the view that unless the Suit itself is decided, there is no question of interpreting any clauses of such document at such interlocutory stage without trial of the Suit, which has the potential of deciding the Suit itself. Let the main Suit be decided expeditiously. 26. No ad-interim injunction also can be granted unless these clauses are interpreted finally as per the averments made by the parties. These averments are also based upon existing dispute between the ( 12 ) Trustees and the Trust which are admittedly pending before various Courts. 27. The allegations of mis-feasance, mal-feasance, fraud, collusion are also subject matter of those litigations prior to filing of this Suit. 28. The injunction order as sought based upon the similar allegations, just cannot be granted in the present Appeal pending other connected matters in which the similar averments are made. Any expression of opinion, at this stage in the Appeal at this interlocutory stage, based upon these clauses and the averments already made will affect the rights of both parties and other pending proceedings also. The documents are in existence since 1978 and the disputes are pending since long. The interim reliefs as prayed, based upon the averments as noted, are also part of other proceedings. 29. The parties on 5th March, 2009 submitted more documents including plaint of Suit No.1997 of 2006, Order dated 21st/24/26 September 2007 passed in the said Suit and the Order by the learned Single Judge in First Appeal No.2667 of 2007 in the same Suit, whereby the Suit was dismissed on the ground of ( 13 ) maintainability in view of the provisions of the BPT Act, by the consent of the parties. 30. The learned trial Judge in the present case has dealt with, while rejecting the interim injunction as prayed in Notice of Motion, in his Order dated 31.07.2008, & relied on the documents and the judgment dated 21/24/26 September, 2007 in Suit No.1997 of 2006 which was filed by the plaintiff against present defendant no.1 and others, in City Civil Court, Bombay. Now as the said Judgement dated 21/24/26 September, 2007 itself has been set aside on the ground of maintainability of the suit under BPT Act. We are of the view that without deciding the merits of the averments made in the plaint in the trial, there is no case to pass any order of injunction by interpreting these clauses, at this interim stage, as prayed. So far as the averments made with regard to mis-feasance and mal-feasance and fraud, the matters are already pending in other Courts revolving around the same. 31. The Charity Commissioner has already framed charges under Section 41-D of the BPT Act and all these matters are pending, therefore, also we are not inclined to grant any interim reliefs as prayed. ( 14 ) 32. Resultantly, the Appeal from Order is dismissed. No costs. All points are kept open. Suit is expedited. 33. In view of dismissal of Appeal from Order, Civil Application No.22/2009 is also disposed of accordingly. No costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)