1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) THURSDAY, THE 13th DAY OF OCTOBER 2011 THE HON'BLE MR. JUSTICE VINOD K. SHARMA O.A. No.542 of 2011 in C.S. No.422 of 2011 S.Vijayakumar, No.1181 D Anna Nagar West End Colony, Mogappair, Chennai-600 050. ... Applicant/Plaintiff -Versus- A.Krishnan, Manager, Indian Overseas Bank, South Usman Road, West CIT Nagar, Chennai-600 035. ... Respondent/Defendant Original Application praying that this Hon'ble Court be pleased to grant interim injunction restraining the respondent/defendant or his men or his agents or servants or anyone acting on his behalf from interfering in any manner with the activities of the Applicant/Plaintiff as the General Secretary and functioning of the All India Indian Overseas Bank Scheduled Caste and Scheduled Tribe Employees Welfare Association, pending disposal of the Suit and award costs. This Original Application coming on this day before this Court for hearing the court made the following order: The applicant / plaintiff has moved this application under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, praying for the grant of interim injunction, restraining the respondent / defendant or his men or his agents or servants or any one acting on his https://hcservices.ecourts.gov.in/hcservices/ 2 behalf from interfering in any manner with the activities of the applicant / plaintiff, as the General Secretary and functioning of the All India Indian Overseas Bank Scheduled Caste and Scheduled Tribe Employees Welfare Association (hereinafter referred to as the 'Association'), pending the disposal of the suit. 2. The suit has been filed by S.Vijayakumar, the plaintiff / applicant herein in his individual capacity against one A.Krishnan, respondent / defendant, again in his individual capacity. 3. It is pleaded that the Executive Committee of the Association, passed a resolution in its meeting held on 13.05.2011, authorizing the applicant / plaintiff to sue or to be sued in the name of the Association. In spite of the resolution, the plaintiff has chosen to file a suit in his individual capacity by not making the registered Association, as plaintiff. 4. The application, prima facie, is not competent, having not been filed with bona fide intention. The pleading itself shows that there are two Associations, i.e., All India Indian Overseas Bank Scheduled Caste and Scheduled Tribe Employees Welfare Association, which was formed in 1978, and a new Association formed in the year 2000 under the name and style as "All India Overseas Bank Scheduled Caste and Scheduled Tribe Employees Welfare Association". https://hcservices.ecourts.gov.in/hcservices/ 3 5. It is not disclosed in the plaint or the application that All India Indian Overseas Bank Scheduled Caste and Scheduled Tribe Employees Welfare Association, with Registration No.163, stood removed from the register of the Registrar and against the order of the Registrar, an appeal has been filed by the Association, but no stay has been granted. 6.The applicant / plaintiff prays for issuance of temporary injunction on the pleadings that All India Indian Overseas Bank Scheduled Caste and Scheduled Tribe Employees Welfare Association was formed in the year 1978 with Scheduled Caste and Scheduled Tribe employees of the Bank as its members. 7.It is pleaded that the Association is the only body, representing the Scheduled Caste and Scheduled Tribe employees. That the respondent / defendant was suspended in the year 1999 for his anti association activities, which resulted in forming of new Association in the year 2000 under the name and style of All India Overseas Bank Scheduled Caste and Scheduled Tribe Employees Welfare Association. 8.Though the applicant / plaintiff claimed that All India Indian Overseas Bank Scheduled Caste and Scheduled https://hcservices.ecourts.gov.in/hcservices/ 4 Tribe Employees Welfare Association, formed in the year 1978, is the only Association, representing Scheduled Caste and Scheduled Tribe employees, but in the subsequent paragraphs, it is pleaded that the Office bearers of the newly formed Association, were elected in the year 2002, wherein, the respondent / defendant was defeated and the applicant / plaintiff was elected as the General Secretary. 9.The case of the applicant / plaintiff, further is that the respondent / defendant created problem for the General Secretary and did not permit him to function, which resulted in the applicant / plaintiff, resigning from the post of General Secretary. The resignation of the applicant / plaintiff was followed by the resignation of the respondent / defendant. According to the applicant / plaintiff, this was with an intent to run a rival Association. 10.In a pending litigation, a decision was taken to merge the new Association with the parent Association and election of new association was held under the supervision of Advocate Commissioner, appointed by this Court. In the election, applicant / plaintiff was elected as the General Secretary of the Association, whereas the respondent / defendant was elected as the President. https://hcservices.ecourts.gov.in/hcservices/ 5 11.It is pleaded that the elected representatives assumed office on 22.03.2010. The applicant / plaintiff further alleges that after assuming the office, the respondent / defendant did not extend any co-operation or necessary assistance by abstaining from attending weekly meetings or participating in the Association activities. The applicant / plaintiff alleges that he was empowered to issue circular under Article 13.C (i) of the bye laws and also to remove the office bearers, in exercise of powers under Section 13.C (ii) of the bye laws of the association. 12.It will be appropriate to reproduce the relevant bye laws, filed by the plaintiff in the typeset of papers, which are necessary for adjudicating the application: "7. Management and Office – Bearers The affairs of the Association shall be determined by the General Council and the Management vested with Executive Committee. The Administrative of the Association shall be conducted by 1. Branch Unit 2. Executive Committee 3. General Council. a. Branch Units Membership at each branch of the bank (the term branch includes Extension Counters, Currency Chests, Central Clearing Offices, Staff Training Centres / College, Regional Offices and various departments in Central Office shall constitute a unit of the Association. The member of each such branch shall elect a branch representative for the conduct of affairs at the branch level where if there are less than two members, one will act as the branch representative. https://hcservices.ecourts.gov.in/hcservices/ 6 b. Executive Committee: The Executive Committee shall be elected from among the members of the Association by the General Council and shall consist of the following: 1. President - One Post 2. Vice President - One Post 3. General Secretary - One Post 4. Deputy General Secretaries (Administrations) Four Posts (including one Sub-Staff) 5. Organising Secretaries - Four Posts 6. Treasurer - One Post 7. Asst. Treasurer - One Post 8. Assistant General Secretaries – One Post for each Region. 9. Executive Committee Members –One Post for each Region (i)The entire Management and control of the Association and its properties and funds shall save as otherwise provided by these rules vest with the Executive Committee and it shall keep the members in constant touch with the affairs of the Association. (ii)It shall convent and conduct ordinary or extra ordinary meetings of the General Council and shall be responsible for the actions to the General Council. (iii)It shall meet as often as is necessary and at least once in 30 months to review / plan the activities of the Association. (iv)The number of office-bearers for the posts of Vice Presidents, Deputy General Secretaries, organising Secretaries, Treasurer, Asst. Treasurer, Asst. General Secretaries, Executive Committee Members shall be decided by the Executive Committee from time to time. c. General Council: Normally, it shall meet to transact the following business: I.To add or alter or rescind the bye laws of the association and make from time to time bye-laws to facilitate conduct business of the association. II.To read and confirm the minutes of the General Council Meeting. III.To receive, consider and adopt the report of the General Secretary and working of the Association. https://hcservices.ecourts.gov.in/hcservices/ 7 IV.To consider and adopt the Audited statement of accounts and the Balance Sheet and the Auditor's Report. V.To elect the office-bearers and the members of the Executive Committee for the ensuing year. VI.To select auditors and fix their remuneration. VII.To transact such other business as may be brought forward with the permission of the chair. 8. Suspension or Removal of Members: The Executive Committee shall be competent to suspend or remove from the register any member: a. Who has not paid subscription for more than three months after notice and / or b.Who has submitted his resignation in writing and / or c.Whose conduct in the opinion of the Executive Committee is contrary and detrimental to the interests of the Association or who had brought or likely to bring the association into disrepute provided that such member is given 7 days notice to that effect. d. The President or the General Secretary when the Executive Committee is not in session shall have the power to suspend / remove any member / office bearer whose action in his opinion is contradictory and detrimental to the interest of the association and has brought or likely to bring the association into contempt and disrepute and report his action to the Executive Committee and such removal / suspension shall be considered by the Executive Committee at its next meeting after providing reasonable opportunity to such member to explain his position and 2/3rd of the members present at the meeting of the Executive Committee vote for such removal. Any member who has been suspended or removed of any of the above said reasons shall have the right to appeal to the General Council." 13. Duties of Office Bearers: A. PRESIDENT: I.The President shall be the Chief Executive of https://hcservices.ecourts.gov.in/hcservices/ 8 the association who shall preside over all meetings of the association and shall have a casting vote only. The President shall have power to call for special meetings of the Executive Committee or the General Council. He shall have powers to negotiate and sign agreement on behalf of the association along with the General Secretary. II.The President can instruct the General Secretary to convene the meetings of Executive committee / General Council and such instructions will be binding on the General Secretary who will issue notifications for such meetings within 30 days of receipt of instruction failing which President can himself issue the meeting notifications. III.Ordinarily all meetings of association shall be president by the President. However, in matters which involve the personal interests of President he will not chair the meetings and the Vice-President, authorised by the meeting shall chair the meetings during the period of discussions and disposal of such matter. IV.President is empowered to exercise the powers conferred on Executive Committee by issuing an executive order including suspension or removal of members / office bearers and same shall be valid and binding on all concerned unless rejected / disapproved by the Executive Committee at its next meeting. V.He shall when necessary visit the various branches and Touring expenses in such cases shall be borne by the association. B. VICE PRESIDENT: I.Vice shall be directly attached with President and shall assist him and work according to his directions. II.During the absence of President, Vice President shall act President. C. GENERAL SECRETARY: (i)The General Secretary shall convene all the General Council and Executive Committee meetings, write minutes and conduct all correspondent, issue circulars and look after all the affairs of the association. He shall https://hcservices.ecourts.gov.in/hcservices/ 9 prepare as at the close of each term a report on the working of the association for the year showing its activities, progress, financial conditions etc. The draft or the report shall be subject to the approval of the Executive Committee before being presented to the General Council. He shall have powers to negotiate and sign agreements on behalf of the association along with the President. (ii)The General Secretary is empowered to exercise the powers conferred on Executive Committee by issuing on Executive order including suspension or removal of any members / Office bearers and same shall be valid and binding on all concerned unless rejected / disapproved by the Executive Committee at its next meeting. (iii)He shall when necessary visit the various branches and touring expenses in such cases shall be borne by the association. In his absence one of the Deputy General Secretaries nominated by the President ordinarily in concurrence with the General Secretary shall act in the place of General Secretary. (iv)He will be responsible for writing minutes of meetings, all correspondence of association issue of circulars, letters, safe guard of all records and assets of association. (v)He shall present periodical report on financial, organizational and other matters of association in the Executive Committee meetings." 13. It is submitted by the applicant / plaintiff that the circular dated 10.03.2011, issued by him, was questioned by the President for want of his approval. The Treasurer, on the instance of the respondent / defendant also refused to sign the cheque, for the meeting expenses towards Executive Committee meeting dated 20.02.2011. 14.The applicant / plaintiff submits that this resulted in issuance of show cause to the Treasurer on 22.03.2011 for his removal. That the amendment of bye laws https://hcservices.ecourts.gov.in/hcservices/ 10 can be altered, replaced, rescinded or added by the majority of the members present at the General Council, therefore, the applicant, with the consent of the President, moved for amendment of bye laws, in the interest of association. 15.However, at the time of consideration of amendment, the respondent/defendant introduced new amendment without the knowledge of the applicant/ plaintiff. 16.This plea, on the face of it, is not sustainable, as the bye law 16 allows, the majority to amend the rules of association wherein the applicant / plaintiff does not have any veto right. 17.The case of the applicant / plaintiff is that in exercise of powers under Section 13.C (ii) of the bye law, he issued show cause notice to the Vice President, Treasurer, Assistant Treasurer and Deputy Secretaries for their removal. These Office bearers did not respond to his notice, therefore were removed. 18.The applicant / plaintiff also submits that in exercise of powers under Section 13.C (ii) of the bye laws, he suspended the respondent / defendant, from the post of the President and subsequently, removed him, which according to the applicant, stood approved by the Executive Committee in the subsequent meeting. https://hcservices.ecourts.gov.in/hcservices/ 11 19.It is further pleaded that on earlier occasion the Association filed a Civil Suit No. 329 of 2011 after filing of the Caveat against all the removed members. The respondent / defendant also filed a Civil Suit No. 320 of 2011 though on the false allegation. 20. Both the suits were dismissed by this Court for want of resolution. It is also the case of the applicant / plaintiff that subsequently, the respondent / defendant called for a meeting at Nagpur without the knowledge and consent of the applicant / plaintiff, though he stood removed from the post of the President. 21. It is submitted by the applicant / plaintiff that subsequently, in view of appointment of new Treasurer, the applicant / plaintiff operated the Bank account and withdrew some amount, but the Indian Overseas Bank stopped its operation without any legal authority, on the asking of the defendant. 22. Though the stoppage of Bank account by the Bank, is under challenge, still the applicant / plaintiff, for reasons best known, has chosen not to implead the Bank as a party, therefore, no notice of these allegations can be taken. Similarly, the allegations levelled against other https://hcservices.ecourts.gov.in/hcservices/ 12 office bearers etc also deserve to be ignored, as none of the Office bearers has been impleaded as party in their individual capacity nor the registered association has been made party to the suit. 23. The respondent / defendant, in counter to the suit, has placed on record the Memorandum of Bye Laws of the association, which are completely different from the one produced by the applicant / plaintiff. 24. On consideration of the matter, I find that this application has no merit. The application, as framed, is not competent, as the suit has been filed against the respondent / defendant in his individual capacity, restraining him from interfering in functioning of the association, on the ground that the applicant has removed the defendant and other office bearers, who were not supporting the plaintiff / applicant. 25. The only ground on which the applicant / plaintiff seeks grant of temporary injunction, is that the applicant / plaintiff stood removed not only the President, but other office bearers also in exercise of powers under Section 13.C (ii) of the bye laws. 26. The ground raised is misconceived. The power is only with the Executive Committee to suspend or remove any member. https://hcservices.ecourts.gov.in/hcservices/ 13 27. The President and the General Secretary, in absence of executive committee, can suspend or remove any member or office bearers, which is subject to the approval of the Executive Committee, but there is no averment that there was no executive committee. It is also not the case that the President was requested to convene the meeting of the executive committee. 28. The Executive Committee consists of the President, Vice President, General Secretary, Deputy General Secretary, Organizing Secretary, Treasurer, Assistant Treasurer, Assistant General Secretaries and the Executive Committee Members. It is not understood how in exercise of powers under bye law 13.C (ii), he could remove the members of executive committee itself. 29.The General Secretary, in exercise of powers under Section 13.C (ii) of the bye laws cannot remove the executive members, nor there is any material showing the approval of executive committee, as claimed. 30.The application, as framed, is not competent, as the applicant / plaintiff in his individual capacity, cannot stop the elected members of the association to function. 31.Further more, necessary parties have not been impleaded against whom allegations have been made. The https://hcservices.ecourts.gov.in/hcservices/ 14 plaint does not show any cause of action. There is no prima facie case in favour of the applicant / plaintiff, which could entitle him to seek grant of temporary injunction. The plaintiff / applicant is also guilty of concealment of facts, as he did not disclose, that the association whom he wants to represent has ceased to exist though appeal is pending. The plaintiff / applicant, thus having not approached this Court with clean hands, is not entitled to discretionary relief of injunction. 32.Finding no merits in this application, it is ordered to be dismissed. No costs. Sd/-V.K.S.J 13.10.2011 //Certified to be a true copy// Dated this the day of 2011. R.s/02.11.2011 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/