1 996.11-ao-- IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 996 OF 2011 WITH CIVIL APPLICATION NO. 1400 OF 2011 Rev Dr.P.B.Amolik and others. ... Appellants. V/s. The Bombay Diocesan Trust Association Pvt. Ltd. and others. ... Respondents. V.A.Thorat, Senior Advocate with Ms.V.V.Thorat and Ms.Prachi Tatake i/b. Shah Legal for the appellants. Viswajeet Sawant with Ms.Rajalakshmy Mohandas i/b. Dinesh Shah for the respondent Nos.1 to 3 and 6 to 8.. CORAM: R.M.BORDE, J. DATED : 20th September 2011. P.C. : Heard. With the consent of parties appeal is taken up for hearing and final disposal at the admission stage. 2 996.11-ao-- 2. The appellant/ original defendant Nos.1 to 6 are taking exception to the order passed by the Judge, City Civil Court, Greater Mumbai in Notice of Motion Nos.3103/2010 and 1830/2011 in S.C.Suit No.2754/2010. The suit is presented by the plaintiffs/ respondents herein claiming following reliefs: a) This Hon’ble Court be pleased to permanently restrain the defendant no.1 & 2 from acting and/or in anyway representing themselves, as Hon. Secretary and Hon. Treasurer of the Bombay Diocesan Trust Association Private Limited, Plaintiff no.1. b) This Hon’ble Court be further be pleased to permanently restrain the defendant no.1 & 2 from interfering and/or obstructing the plaintiff no.1 & 2 from running the administration of the Bombay Diocesan Trust Association Private Limited and/or discharging their duties as the Hon. Secretary and Hon. Treasurer of the Bombay Diocesan Trust Association Private Limited. c) This Hon’ble Court be pleased to declare that the defendant no.1 has no right and/or authority to call for the Annual General Meeting of Bombay Diocesan Trust Association Private Limited convened on 31st December, 2010, in view of resolution dated 19th January, 2010. d) This Hon’ble Court be pleased to declare that the defendant no.1 has no right and/or authority to call for the Meeting of Board of Directors of the Bombay Diocesan Trust Association Private Limited convened on 20th December, 2010, in view of resolution dated 19th January, 2010. e) Pending the hearing and final disposal of the aforesaid suit this Hon’ble Court by its temporary 3 996.11-ao-- order and injunction be pleased to restrain the defendant no.1 & 2 from acting and/or in anyway representing themselves as the Hon. Secretary and Hon. Treasurer, respectively of the said Bombay Diocesan Trust Association Private Limited. f) Pending th hearing and final disposal of this suit this Hon’ble Court by its temporary order and injunction be pleased to restrain defendant no.1 & 2 from interfering and/or obstructing the plaintiff no.1 & 2 from running the day to day administration of the Bombay Diocesan Trust Association Private Limited and/or discharging their duties as the Hon. Secretary and Hon. Treasurer of the Bombay Diocesan Trust Association Private Limited. g) Pending th hearing and final disposal of the aforesaid suit, this Hon’ble Court by its temporary order and injunction be pleased to restrain defendant no.1 & 2 from holding the Annual General meeting illegally convened on 31st December 2010. h) Pending the hearing and final disposal of the aforesaid suit, this Hon’ble Court by its temporary order and injunction be pleased to restrain defendant no.1 & 2 from holding the meeting of Board of Directors of the Bombay Diocesan Trust Association Private Limited illegally convened on 20th December, 2010. In a pending suit, notice of motion has been taken out for grant of injunction against defendant Nos.1 and 2 to the effect that they shall not represent themselves as Secretary and Treasurer of the plaintiff No. 1- Trust as well as they may be restrained from running day to day affairs of the Trust in the capacity of Secretary and Treasurer. The plaintiff No.1 is registered under the provisions of the Companies Act, 4 996.11-ao-- 1928 and is also registered as Trust under the Bombay Public Trust Act (“BPT Act” for short). The object of the Trust is to promote Christian religion in India. The plaintiff Nos.2 and 3 and defendant Nos.1 to 6 and 9 and 11 are the Directors/ Trustees of the plaintiff No.1- Trust since long. It is the contention of the plaintiffs that in the year 1994 the defendant Nos.1 and 2 were elected as Secretary and Treasurer of the Trust respectfully for a period of one year. The tenure of the elected representatives, under the relevant rules governing activities, is prescribed by one year. The tenure of defendant Nos.1 and 2 was extended from time to time and, lastly, they were elected for one year for a period ending 2nd September 2010. It is the contention of the plaintiffs that in the meanwhile a crime came to be registered on the basis of the complaint filed by one Mr.D.P.Londhe with Azad Nagar Police Station bearing C.R.No.104/2009 in respect of offence punishable under sections 406 and 409 read with section 34 of Indian Penal Code. After registration of crime, the Board of Directors of the Trust took a decision for removal of the erring directors viz. Defendant Nos.1 and 2. from the posts they were holding. It is contended that in a meeting held on 19th January 2010, defendant Nos.1 and 2 came to be removed from the post of Secretary and Treasurer of the Trust. It is further contended that in a meeting held on 19th January 2010, two new directors have been appointed in the place of defendant Nos.1 and 2. Accordingly, a change was communicated to the Charity Commissioner as contemplated under section 22 of the B.P.T.Act. According to the plaintiffs, the activities of the Secretary and Treasurer are detrimental to the interest of Trust and, as such, with a view to curtail their activities, the plaintiffs have presented the suit claiming the reliefs stated above. 5 996.11-ao-- 3. The suit presented by the plaintiff was opposed by defendant Nos.1 and 2. In a notice of motion taken out seeking interim relief, the defendant Nos.1 and 2 caused appearance and resisted the prayers by filing their say/ written statement. It is the contention of defendant Nos.1 and 2 that, in fact, the meeting held on 19th January 2010 is illegal, bad in law and against the provisions contained in the memorandum of association and articles of association of the Trust. According to defendant Nos.1 and 2, the articles of association prescribes that it is the only General Body who is authorized to appoint the Secretary and Treasurer of the Trust and, obviously, therefore the power of their removal vests with the General Body. The defendant Nos.1 and 2 have also questioned legality of the meeting dated 19th January 2010. It is their contention that they are entitled to function as Secretary and Treasurer of the Trust. It is contended that defendant Nos.1 and 2 have also presented a suit being S.C.Suit No.400/2010 claiming a decree of restraint against the plaintiffs from taking charge of the office of the Trust from them. They, as such, prayed for dismissal of the notice of motion taken out by the plaintiffs. 4. After hearing respective parties, the learned trial Judge was pleased to allow the notice of motion in terms of prayer clauses (a) and (b). The defendant Nos.1 and 2 are restrained from interfering in day to day affairs of the plaintiff No.1- Trust in any manner by posing themselves as Secretary and Treasurer of the Trust respectively till the decision of learned Assistant Charity Commissioner in respect of the change report filed by the plaintiff Nos.2 and 3. 6 996.11-ao-- 5. I have heard the arguments advanced by learned counsel for the respective parties. Learned counsel appearing for the appellants has contended that in view of bar contained in section 80 of the B.P.T.Act, the issues raised in the suit are required to be dealt with by the authorities prescribed under the B.P.T.Act and the suit presented before the civil court is not entertainable. Section 80 of the B.P.T.Act provides for bar of jurisdiction to decide and deal with the questions which are required to be decided and dealt with by the officer and/or authority under the provisions of the B.P.T.Act. Section 80 of the B.P.T. Act reads thus: Section 80 - Bar of Jurisdiction Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of] which the decision or order of such officer or authority has been made final and conclusive. 6. It is not disputed that in respect of removal of two trustees i.e. defendant Nos.1 and 2, the change report is presented to the authority prescribed under the B.P.T.Act and the change report is pending for adjudication. Section 22 of the B.P.T.Act prescribes that the change occurred in the constitution of the committee is required to be communicated to the Deputy or Assistant Charity Commissioner and the Deputy/ Assistant Charity Commissioner, after following the procedure prescribed under the Act, is supposed to either accept or reject the change report. Section 41-D of the B.P.T.Act provides for suspension, removal and dismissal of the trustee, whereas section 41(c) 7 996.11-ao-- is in respect of powers exercisable by the authorities to act for protection of the Charities. There is a power vested in the Charity Commissioner even to issue order of injunction to protect interest of the Charities. According to the senior counsel appearing for the appellants, the questions raised in the suit as well as in the notice of motion are required to be dealt with by the authorities prescribed under the B.P.T.Act and, as such, the dispute of the present nature is not entertainable by the civil Court. An application is presented on behalf of the appellants; wherein it is prayed to direct the trial Court to frame preliminary issue, namely, “Whether the jurisdiction of the Civil Court to consider and grant reliefs sought in prayer clauses (a) to (d) of the Plaint is barred u/s 80 of the BPT Act?” 7. According to the senior counsel appearing for the appellant, the objection with respect to jurisdiction of the civil Court raised by defendant Nos.1 and 2 is required to be dealt with in view of the amended provision of section 9A of C.P.C. before the civil court proceeds to decide the application seeking interim relief. It is, thus, contended that the issue arising in the matter relates to the jurisdiction of the Court which is required to be dealt with by the trial Court before proceeding to decide the application for grant or refusal of the interim relief. In view of the objection in respect of jurisdiction raised by the appellant/ original defendant Nos.1 to 6, it has become essential to remit the matter back to the trial Court for framing a preliminary issue as requested by the appellants and to direct civil Court to decide the same before considering the application tendered by the plaintiffs seeking interim relief. Therefore, the only course open for this Court is to remit the matter back to the trial Court with a direction to frame 8 996.11-ao-- issue as requested by defendant Nos.1 and 2 and to direct civil Court to decide the same as contemplated by section 9A of C.P.C. The order passed by the trial Court impugned in this appeal needs to be quashed and set aside and the matter is required to be remitted back to the trial Court for reconsideration. The trial Court shall deal with the notice of motion presented by the plaintiffs after rendering decision on the objection raised by defendant Nos.1 and 2 in respect of jurisdiction of the civil Court. The trial Court after considering the issue of jurisdiction raised by defendant Nos.1 and 2 shall proceed to decide afresh the notice of motion tendered by the plaintiffs seeking interim relief on its own merits in accordance with law after affording opportunity of hearing to the parties concerned and without being influenced by the decision rendered by this Court in the instant appeal from order. 8. So far as arrangement during the pendency of the consideration of the notice of motion is concerned, both rival parties are directed not to take any policy decisions touching the business of the Trust during adjudication of the issue in respect of jurisdiction of the civil Court and during pendency and disposal of the notice of motion tendered by the plaintiffs seeking interim relief. The trial Court shall proceed to decide the preliminary objection as well as notice of motion seeking interim relief presented by the plaintiffs in accordance with the directions issued by this Court within six weeks from today. Appeal from order and civil application stand disposed of accordingly. No order as to costs. (R.M.BORDE, J.)