L ‘7 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 8 DAY OF NOVEMBER 2010 BEFORE THE HON’BLE MR.JUSTICE ]AWAD RAHIM CRP. NO. 170/2010 BETWEEN: H.S.SESHAGIRI, Sb LATE SUBBA RAO, AGED 48 YEARS, R/A NO.372, II FLOOR, PARRIMALA COMPLEX, CHAMARAJA DOUBLE ROAD, OPP. SRI KRISHNA BAKERY, MYSORE. PETITIONER (BY SRI T.SESHAGIRI RAO, ADV.,) AND: 1. SRI KATTEMANE NAINA DESCENDENTS ASSOCIATION, REGISTERED UNDER KARNATAKA SOCIETIES REGISTRATION ACT, 1980 HAVING ITS REGISTERED OFFICE AT 117, 1-A MAIN ROAD, KASTHURI NAGAR BANGALORE - 43 REPRESENTED BY ITS SECRETARY 2. S.N.BALAKRISHNA FATHERS NAME NOT KNOWN TO THE PETITIONER AGED ABOUT 66 YEARS 3. SRI H.N.NARAGARAJA RAO, FATHER’S NAME NOT KNOWN TO THE PETITIONER AGED ABOUT 67 YEARS 4. SRI P.GURURAJA RAO, FATHER’S NAME NOT KNOWN TO THE PETITIONER AGED ABOUT 48 YEARS 5. SRI K.R.BALAKRISHNA, FATHER’S NAME NOT KNOWN TO THE PETITIONER AGED ABOUT 43 YEARS THE RESPONDENT NOS.2 TO 4 HAPPEN TO BE C/O SRI KATIE HOUSE (KAHEMAGNE), SRI VENUGOPALA SAN NIDHI, OPP: SILVER JUBLIEE CLOCK TOWN, CLOWER TOWER SQUARE MYSORE - 24 RESPONDENTS (BY SRI T.V.VIJAY RAG HAVAN, ADV., FOR Ri) THIS CRP FILED U/S 115 OF CPC, AGAINST THE ORDER DATED 26-03-2010 PASSED IN I.A.NO.3, O.S.NO.1266/2007 ON THE FILE OF THE V-ADDL. I-CIVIL JUDGE (JR.DN), MYSORE, REJECTING THE I.A.NO.3 FILED U/O 7 R-11(a) R/W S-151 OF CPC., SEEKING THE REJECTION OF PLAINT. This petition coming for hearing this day, the court made the following ORDER Defendant no.4 is in revision assailing rejection of his application filed under Order VII Rule 11(a) and (d), C.PC. to reject the plaint in 0.5.1266/07 on the file of Civil Judge (Jr.Divn.), Mysore. 2. Heard. 3. Contextual facts which need reference are: a) Respondent no.1, a society nomenclatured as Kattemane Naina Descendants’ Association registered under the Karnataka Societies Registration Act, 1960, (hereinafter referred to as the Act, for brevity) filed a suit in O.S.1266/07 for a decree to declare the petitioner herein who is one of its members and other defendants, had lost locus to be member of the society and for consequential injunction to restrain them or any person claiming under him, from causing any obstruction to the members of the Association in gaining entry into the schedule premises or conducting its activities. 4 Undoubtedly the suit was for action in personem against the revision petitioner. b) In support of the relief so sought, 1 st respondent (plaintiff) herein averred it is an Association registered under the Societies Registration Act established by the descendants of Sri Naina Attache N Venkat Rao, a great spiritual soul who attained ‘Gamaka’ on account of his selfless, immense and staunch devotion to Lord Venugopalaswamy. They allege, the petitioner who is one of the members acted in detriment to the aims and objects of the Association and has been disrupting its activities. All attempts by members of the plaintiff Association to reason out with him were of no avail. Several instances of mischievous acts are narrated in the plaint necessitating filing of the suit. However, all those detaUed statements need not be adverted to in these proceedings as the issue under consideration is only with regard to maintainability of the suit. .1 (Ii, 5 c) From the averments in the revision petition and the contentions of learned counsel on both sides, It is seen the genesis of this revision is rejection of the application filed by the petitioner invoking Order VII Rule 11 (a) and (d), C.P.C. to reject the plaint on the sole ground that the signatory to the plaint, viz., secretary, was not empowered under Section 15 of the Act to file the suit, nor was he conferred with such authority by resolution passed by the governing body of the association as required. d) Finding no favour with the grounds in such application, the learned trial judge rejected it. 4. In support of the application and against the impugned order, learned counsel, Sri Seshagiri Rao submits the plaint is signed by the secretary who has not produced any authorization to testify his authority to institute the suit. In this regard, he assertively contends the Rules and the Regulations of the association have not empowered the president, prindpal secretary or any trustee to sue or be sued in the name of the society. Therefore, unless such determination is done by a 6 resolution passed by the governing body authorizing the• secretary who has signed the plaint, to file the suit, the suit must fall and plaint to be rejected. 5. Learned counsel seeks citational support to his contentions on the following decisions: 1) MUDDAPPA VS PANCHAKSHARAIAH reported in ILR 1985 KAR 1230 and 2) B.H.INAMDAR vs B.F.SWAMY reported in ILR 1991 KAR 1654. Referring to Section 15 of the Act and the citations, he submits the society may determine by rules and Its regulations that it may sue or be sued by the president, chairman, principal secretary or any trustee. In the absence of such determination by the rules and regulations of the society, the society can sue and be sued only by such person as shall be appointed by the governing body ‘for the occasion’. 6. His contention is, in the instant case, as the rules and regulations of the plaintiff society have not determined that it can sue or be sued by its president, chairman, principal secretary or any trustee, (In the absence of such It,, I” 7 determination), the second part of Section 15 applies due to default of such determination, the society could sue or be sued in the name of such person as shall be appointed by the governing body ‘for the occasIon’. Since no such resolution has been passed by the governing body to make such appointment the secretary would have no competence to sign the plaint to file suit regarding rejection of plaint. 7. Learned counsel has taken me through the records to show the signatory to the plaint who claims to be secretary of the plaintiff society, but has not produced the resolution of the governing body appointing or authorizing him to filethe suit. 8. His next contention is, even if he was so authorized by governing body, to sue or be sued In the name of the society, the authorization must be ‘for the occasion’ for each cause, I.e. to file the present suit or any suit or to defend any particular suit. The emphasis is on the words ‘for the occasion’ appearing in Section 15 of the Act. In 00 short his contention is general authorization is also not enough, the authorization/appointment must be for each suit. 9. On this point, he relies on the following case laws: MUDDAPPA VS PANCHAKSHARAIAH reported in ILR 1985 KAR 1230 wherein it is held thus: In the absence of any determination of By laws and Rules of the Society if there is no empowerment on the President, Secretary, Chairman or Trustee as the case may be, then, it is held affirmatively that the society can sue or be sued through one of the persons authorised under Section 15. If a society sues or be sued through person not so empowered, such action will be incompetent. 10. In the second decision relied by the learned counsel i.e. B.H.INAMDAR, the apex court held: PARA-7 — Section 7 of the Karnataka Societies Registration Act, provides that every Society registered under this Act may sue or be sued in the name of the President, Chairman, or Principal Secretary or the Trustees as shall be determined by the Rules and Regulations of the society. Section 15 clearly enables a registered society to determine by Rules and Regulations in whose name the Society may sue or be sued, The Rules and Regulations may determine whether the Society may sue or be sued in the name of President, Chairman or Principal Secretary or the Trustees. Once the Rules and Regulations so determine the Society may sue or be sued only in the name of that designated authority or person. Where the rules and regulations do not so determine, it enables the governing body of the Society to appoint a person for the occasion. The learned Counsel for the plaintiff/appellant submitted that Section 15 of the Act, must be read to mean that the Society can always sue or be sued in the name of the president, Chairman, Principal Secretary or the trustees. It is not possible to accept that submission because of the clear language employed in Section 15 of the Act clearly providing that the rules and regulations must determine in whose name the society may sue or be sued, Under the rules and regulations the determination must be made in favour of the President, Chairman, Principal Secretary or the Trustees, and no one else. In the absence of such general determination by the rules and regulations, for every occasion the governing body is required to nominate a person in whose name the society may sue or be sued. The proviso to Section 15 also supports this interpretation by providing that in the absence of any general determination by the rules and regulations, any person having a claim or demand against the Society may sue it in the name of the President, Chairman, or Principal Secretary or the Trustees thereof, provided the governing body on an application made by the claimant fails to nominated any other officer or person to defend,” 11. In negation of all such contentions and the decisions referred to above, Sri Vijayraghavan, learned counsel for the respondentsplaintiffs submits there is clear authorization in the by-laws of the society authorizing its secretary to do all that is necessary for administration of l0 the society and for safeguarding its interest which is sufficient authorization to file the suit. He relies on clauses 3(d), (m) and Section 26 of the plaintiff societies by-laws which read as follows: Clause 3(d): The secretary may call for a general body meeting for which 21 days notice shall be given to the members. Clause 3(m): to open bank account in the name of the Association In nationalised/co operative bank operated by secretary jointly with the treasurer or any executive committee member of the Association’. 26. EXECUTIVE POWERS OF ThE COMMITFEE: The administration and management & the Association shall vest in the executive committee consisting of 08 members including President, Secretary, Treasurer and 05 E.C. members of the Association. On this basis It is urged the by-laws confer suffident power on the secretary and in exercise of such empowerment he has filed the suit. He submits, It will answer the requirement of Section 15 of the Act. He would then submit the controversy as raised by the 11 defendant regarding lack of authorisation to the secretary to file the suit is also not tenable as the plaintiff has produced the extract of the resolution of the governing body dated 169.2OO6 in which it was resolved to constitute a Legal Cell of 3 members to take care of all legal matters including filing of suit if need be, and to make use of Association funds for such purpose. Constitution of Legal Cell is also spelled out which includes president, secretary and Bhimrao-member. Thus, it is On this basis, he submits the secretary being a part of the Legal Cell, was fully authorised to file the suit and this also meets the requirement of Section 15 of the Act. 12. The resolution referred to by him reads: SRI KATTEMANE NAINA DESCENDENT’S ASSOCIATION REGISTERED (no.blu-s139-2006-07) under Karnataka Societies Registration act 1960 GENERAL BODY MEETING Held on 16 th SeDtember 2006 at The Residence of Sri M.R.Ranga Rao, at Jayanaciar, Bancialore Agenda: (1) (2) (3) To constitute a legal cell ol three members and authorze them to take care of all legal matters and file a suite 12 if need be to secure our place in Kattemane and to make use of the Association funds for such purposes. RESOLUTION: This meeting unanimously resolved the following: (1) The existing list of EC members to continue until election of new EC after two years. (2) The GBM approved the constitution of a legal cell consisting of the President, the Secretary and Mr.BhlmRoa, a Patron Member. (3) The legal cell was authorized to engage a lawyer as they fit, prosecute a suite If need be to secure our right, maIntain necessary confidentiality and make use funds as required for the purpose. The use of funds for this purpose will be oversee by the EC. Signed Signed President Secretary 13. To test whether the resolution in question meets the requirement of Section 15, necessarIly SectIon 15 of the Act needs reference which reads thus: “15. Suits by and against society: Every society regIstered under this Act may sue or be sued In the name of the president, chairman, or principal secretary or the trustees as shall be determined by the rules and regulations of the society, and, In default, of such determination, in the name of sUch person as shall be appointed by the governing body for the occasion: Provided that, it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the 13 trustees thereof, if, on application to the governing body, some other officer or person be not nominated to be the defendant.” 14. The first part of Section 15 of the Act envisages every society registered under this Act may sue or be sued in the name of the president, chairman or principal secretary ‘as shall be determined by the rules and regulations of the society’ and in default, of such determination in the name of such person as shall be appointed by the governing body for the occasions. 15. On a perusal of the rules and regulations of the plaintiff’s society, It is evident there Is no such determination authorizing the president, chairman, principal secretary or trustee to represent It in any civil action. Consequently, the second part of Section 15 applies which postulates ‘in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.’ In the instant case, the signatory to the plaint had to substantiate that in terms of second part of Section 14 15, the governing body of the plaintiff has empowered him. He has failed to do so. The resolution relied by the plaintiff has not authorized him (secretary). It has merely constituted a legal cell for legal advise and appropriate actions. 16. Therefore, affirmatively it has to be held, in the instant case as there is no determination by rules and regulations of the society, a resolution of the governing body was necessary appointing such person as it deemed fit for the occasion in whose name the society may sue or be sued (in this case the secretary), in the absence of which office bearer of the society, like the President or Secretary by virtue of their office will not be competent to represent the society to sue or be sued. 17. The plaint is admittedly signed by a person claiming to be the secretary. As there is no determination by the rules and regulations of the plaintiff naming the secretary, nor there is such determination by the governing body to appoint him i.e., secretary to represent 15 the society to sue or be sued, he had no legal competence. The person who has signed the plaint has not substantiated he was his authorized as required in Section 15 of the Act. The resolution dated 16.9.2006 referred to by the learned counsel, Vijayraghavan extracted above does not meet the requirement of Section 15 of the Act, as it is to the following effect: RESOLUTION: This meeting unanimously resolved the following: (1) The existing list of EC members to continue until election of new EC after two years. (2) The GBM approved the constitution of a legal cell consisting of the President, the Secretary and Mr.BhimRoa, a Patron Member. (3) The legal cell was authorized to engage a lawyer as they fit, prosecute a suite if need be to secure our right, maintain necessary confidentiality and make use funds as required for the purpose. The use of funds for this purpose will be oversee by the EC. By such resolution, the governing body has constituted a legal cell of three members consisting of the president, secretary and Mr.Bhim Rao, a patron member, “to engage a lawyer as they deem fit, prosecute the suit if need be, to secure our right, maintain necessary confidentiality and I 6 make use of funds as required for the purpose. The use of funds for this purpose will be overseen by the EC.” 18. The resolution has authorized a ‘legal cell’ but has not appointed the secretary (who has siçned the plaint) as the person in whose name the society may sue or be sued, in terms of Section 15 of the Act. At the most, the resolution could be taken as authorizing/appointing a legal cell’ for taking appropriate legal action in judicial proceedings against the society or by the society, but does not meet the requirement of second part of Section 15 of the Act. 19. The second issue raised by Mr.Seshegiri Rao requiring consideration is, even if the society has passed any resolution in the absence of authorization by the by laws, the authorization must authorize any person to sue or be sued in the name of the society for a particular cause of action. In other words, his contention is, for institution of every suit and to defend every cause of action, there should be a resolution authorizing such peson to 17 represent the society in any particular case, and the authorization cannot be general authorization authorizing the secretary, president to sue or be sued in the name of the society. He has canvassed such contention referring to the words ‘for the occasion’ appearing in Section 15 of the Act. 20. I have examined the provision of Section 15 of the Act which, as discussed above, has two parts. By the first part, every society registered under the Act may sue or be sued in the name of the president, chairman, principal secretary or trustees as shall be determined by the rules and by-laws of the society. Thus the society can empower by incorporating in its rules and by-laws to sue or be sued in the name of the president, chairman, principal secretary or trustees. This, undoubtedly, is a general authorization to sue or be sued on all cause of actions. Therefore, if as envisaged in the first part of Section 15, rules and by-laws have authorized the president, chairman, principal secretary or trustees to represent the society, they will be competent to do so in every suit and proceeding and no specific authorization for a particular suit or proceeding is necessary. 21. Keeping this in mind, we have to examine the second part which envisages ‘in default of such determination, the society could sue or be sued in the name of such person as shall be appointed by the governing body ‘for the occasion’. Learned counsel has referred to the words ‘for the occasion’ to contend, if the society has not determined by its rules and by-laws that it may sue or be sued in the name of the president, chairman, principal secretary or trustees, then by resolution it may appoint any such person but such appointment will be confined to a particular case. 22. This does not appear to be the intention of the Legislature because if the intention was to require the governing body of the society to appoint any person in whose name it may sue or be sued for every cause of action, the same would have been spelled out in the section itself. The first part of Section 15 would clearly ‘V 1 19 indicate every society may sue or be sued In the name of the president, chairman, principal secretary or trustees, as shall be determined by the rules. This is a general authorization and not confined to any particular cause of action. By virtue of such determination, the office bearers named would be competent to represent the society on all causes of action. It is only in the absence of such determination the provision of Section 15 requires as resolution to be passed that the society may sue or be sued in the name of such person as shall be appointed by the governing body ‘for the occasion.’ No doubt the words ‘for the occasion’ are used in the second part, but that cannot be read to mean that for every suit to be filed and every suit to be defended, the governing body Is required to pass separate resolutions. If such proposition Is accepted, It stands to no reason for the Legislature to give power of general authorization by the by-laws. Hence it Is difficult to accept that for every suit to be flied and defended, the governing body must pass a separate I 20 resolution. Hence, I am unable to accept the second contention of Sri Seshagiri Rao. 23. But for the reasons discussed above and in view of the proposition of law in the decisions cited supra, observations of which I have extracted, the petitioner succeeds in this petition. 24. In the fact situation the application filed under the provisions of Order VII Rule 11(d) CPC has to be examined In the lIght of the provisions of Order VII Rule 11(d) CPC which postulates where the suit appears from the statement in the plaint to be barred by any law, the plaint is liable to be rejected. Since the suit in question will be barred by Section 15 of the Act, the plaint was liable to be rejected. The trial Court has not examined this Issue and on the other hand, has proceeded to conclude that the resolution dated 16-09-2006 meets requirement. The conclusion reached by the trial Court is erroneous and therefore, it is unsustainable. 1’ 4, tI t 21 25. In the result, the suit as flied by the Secretary without authorization is held to be incompetent and the plaint is liable to be rejected. 26. With these observations the revision is allowed. Plaint is ordered to be rejected, of course, the right of the plaintiff to initiate fresh action, if legally tenable, is saved and shall not be affected by this order. Sd! JUDGE vgh*/VK