THE HON'BLE SRI JUSTICE B.PRAKASH RAO CIVIL REVISION PETITION NO.4601 OF 2007 %21.10.2010 #1. The Chairman, the Hyderabad Gymkhana, S.S.R.L.Swamy, S/o. S.Venkataramaiah, 79 years, Road No.2, Banjara Hills, Secunderabad and one other. ...PETITIONERS VERSUS $1. Shri Ramesh Agarwal, S/o.Mukundilal Agarwal, Business, R/o.Plot No.9, Phase III, Bhavana Colony, New Bowenpally, Secunderabad and one other. ...RESPONDENTS < GIST: > HEAD NOTE: !Counsel for PETITIONERS: MR. PERI PRABHAKAR ^Counsel for RESPONDENT NO.1: MR. Srinivas Chowdary Counsel for RESPONDENT NO.2: NONE APPEARED. ? Cases referred THE HON'BLE SRI JUSTICE B.PRAKASH RAO CIVIL REVISION PETITION NO.4601 OF 2007 ORDER: The petitioners-defendants filed this revision under Section 115 of the Code of Civil Procedure, 1980 {CPC}, inter alia, seeking to assail the order dated 30.06.2007 in O.P.No.2392 of 2005 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, in allowing the petition filed under Order VII Rule 1 read with Section 26 CPC and under Section 6 of the Societies Registration Act, 2001 {“the Act” for brevity}, filed seeking declaration of the action of the defendants in terminating the Founder Membership bearing No.58 of Gymkhana Club, Banjara Hills, Hyderabad, without following due process of Memorandum of Association by issuing letter dated 13.09.2004, as null and void. The facts, in brief, which are necessary for disposal of this revision, are that, admittedly, the first respondent herein, who happened to be the petitioner in the Court below {hereinafter called as the petitioner}, is the Founder Member of the Gymkhana Club, which is a registered society under the Act. Under the Byelaws of the Society, the Founder Member need not pay any Membership Fee. However, due to some unforeseen circumstances and as a result of the other involvements and attending certain duties, for some time, the petitioner had to live in the Northern parts of the country with a view to return back to Hyderabad. Therefore, he requested his friend Mr. Rajan Khattar to approach the clerk for the purpose of renewal of Membership. Accordingly, the clerk informed Mr. Rajan Khattar that a sum of Rs.5,000/- to be paid towards dues and Rs.500/- towards re- entry fee. Thereafter, Mr. Rajan Khattar paid the said amount on 26.04.2004 under receipt No.27453. In spite of the payment, according to the petitioner, a General Body meeting was held on 26.09.2003 and as per agenda No.5 under the head “Ratification of Readmission of ceased members”, four members were readmitted by collecting necessary fee and the petitioner was informed by letter dated 13.09.2004 that his membership was not revived. Therefore, according to the petitioner, refusal to admit him as a Founder Member is wholly misconceived and arbitrary and in fact, he is entitled to continue as a Founder Member without any demur. Prior to filing of the present revision, the petitioner filed W.P.No.2261 of 2004, which was disposed of with an observation that the petitioner can avail the remedy under the Act. Hence, the petitioner filed O.P.No.2392 of 2005. In the said O.P., the third respondent-the second petitioner herein filed counter, which was adopted by respondents 1 and 2-the Registrar of Co-operative Societies and the Chairman, Hyderabad Gymkhana, the first petitioner and the second respondent herein respectively. The counter affidavit was sworn by Sri A. Nageswara Rao, Honorary Secretary of the Society, wherein it is stated that the petitioner was the Founder Member among 100 Founder Members and to discharge the debt due to a Bank, each member was asked to contribute Rs.5,000/- as per the resolution in the General Body Meeting. Several members paid except the petitioner and few others and therefore, the General Body adopted a resolution to terminate the membership of the petition. After collecting Rs.5,500/- from Mr. Rajan Khattar on behalf of the petitioner, the Board decided to admit the petitioner only as a permanent member and when the said decision was informed, Mr. Rajan Khattar wrote a letter on 14.08.2004 to the Society seeking return of the amount of Rs.5,500/- as the petitioner was not interested in joining the Club in any other category except as a Founder Member. Hence, the petitioner was not admitted into membership and the petition was not maintainable. On these and other allegations as contained in the respective pleadings, the Court below framed the following points for consideration. 1. Whether the Founder Membership of the petitioner is liable to be terminated under Bye-laws of the society? 2. If not, whether the petitioner is deemed to be continued as a Founder Member? 3. To what relief? Later, both the sides entered into regular enquiry in the process of which, the petitioner was examined as P.W.1 and marked Exs.A1 to A11. On behalf of the respondents, R.W.1 was examined and Exs.B1 to B6 were marked. On an appraisal thereof, the Court below allowed the petition and declared that the petitioner is continuing as a Founder Member of the Club and the impugned letter dated 13.09.2004 held to be not affecting his rights and consequentially, directed the Club to permit the petitioner to enjoy all the facilities, rights and privileges provided to the Founder Members in accordance with the Bye-Laws. Aggrieved thereby, the present revision is filed by defendants 2 and 3. The main contentions urged in the memorandum of grounds of revision are that the very allowing of the petitioner in the manner in which he sought is not permissible and unsustainable. Further, the Court below erred in holding that in the absence of any specific Bye- law permitting the Club to terminate the membership of a Founder Member, it could not have terminated the membership. The Court below did not properly consider the documents, Exs.B1 to B6 in a correct perspective. The Court below was also not right in holding that the Club could not have passed resolutions under Exs.B3 and B4 in the absence of any specific Bye-law permitting them to do so. They ought to have seen that the resolution is passed by the General Body in accordance with the provisions of the Act. Further, it is also contended that since the petitioner himself failed to join the Club, he is not entitled to any relief. On the other hand, the contention of the petitioner is that the revision is liable to be dismissed for non-joinder of the first registrar of societies as party to the proceedings. With these and other contentions, the entire gamut surrounds on the basic fact that the petitioner has got every right to get permitted, especially in the facts and circumstances, where the petitioner himself absented for a long time and did not accede to the request of the Club for joining back as a permanent member. Further, it is also pointed out that the claim of the petitioner is hopelessly barred by limitation and also urges that apart from the fact that the Court below ought to have seen that having not complied with the objection raised by the General Body on par with the other members that too in terms of the earlier resolution of the General Body, the petitioner could not possibly seek to be taken as a Founder Member or any other member. These and other submissions made on behalf of the Club are sought to be repelled on behalf of the petitioner-first respondent to the effect that having regard to the reasons given by the Court below, which established the total lack of any specific power or Bye-law contemplated in a given situation to effect that the termination of the petitioner could not have taken any recourse and any such action is wholly misconceived. Apart from the fact that there is no question of permanent Founder Membership so as to continue all along, there is no requirement or any obligation of such Founder Member to comply any condition or payment of any fee with a view to warrant any termination nor there could be any termination as such. From the above said submissions and on perusal of the material available on record, the only point that arises for consideration is as to whether on the facts and circumstances of the case, the termination of the petitioner-first respondent as a Founder Member of the Club is valid and justified. There is no dispute to the fact that the petitioner-first respondent happened to be Founder Member one amongst 100 as originally constituted at the inception and formation of the Club. Admittedly, there is no dispute to the fact that there is no requirement of any payment of fee in any manner or in any quantity or that any payment to be made by such Founder Member. Virtually, the entire Bye-Laws are totally silent on the reference to the fee to be paid by the Founder Member. Founder Members are always remained as members who are responsible in the very formation of the Club and ultimately, it is understood that such Founder Members should continue to remain. Even though the Court below has specifically given a finding taking into consideration the Bye-laws of the society that there being no specific Bye-law in regard to the termination of the Founder Member, nothing has been pointed out on behalf of the petitioner by the learned counsel to show as to the existence of power either under the Bye- laws or otherwise. Therefore, in the absence of such specific visualization impending action, there could not have been any termination. Apparently, the Bye-laws and even the law otherwise is quite silent as to the termination to be effected in respect of Founder Members. As already pointed out above, the Founder Members would not possibly be thrown out nor would it be the intention of any such institution to remove the Founder Members since they constitute the very foundation and save their stand by assisting all along. Further, surprisingly, the facts as merged from the evidence put forth by both the sides and also various documents produced by P.W.1 and R.W.1, the details need not be necessarily gone into at this stage since they do not have any effect. When there is no such admitted fee to be paid by the Founder Member, there is no requirement nor any legal consequence to follow for having compliance thereof. The only amount which was contemplated by the resolution of the General Body is that each member is supposed to pay an amount of Rs.5,000/- in discharge of a debt. However, this cannot be constituted as membership nor also be taken as a ground of disqualification or disentitling a Founder Member from continuing any such capacity. That particular compliance gone up again in Founder Member and tried to give in termination. Further, even otherwise, an attempt has been made, of course lately, on behalf of the petitioner to make the said payment and the same was received including a fee for re-entry of Rs.5,500/-, which again is not justified by the Club as to how and under what liability or Bye-laws they are entitled to collect any such re- entry fee. Further, that member cannot be terminated, especially being in the capacity of Founder Member. There could not be any re-entry nor any fee required thereof. In spite of such payment made again, the petitioner did not construe as to why he could not possibly continue as Founder Member instead the Club sought to convert his membership, for which action no justified reason is forthcoming except saying that it is the decision of the Board. Irrespective of decision of the Board or otherwise, necessarily, it has to be well within the four corners of law and as contemplated there under but not otherwise. Therefore, the action on the part of the Board or Club virtually leaving the Founder Member down to a permanent member is wholly unjustified, illegal and cannot be accepted. This Court is fairly in agreement with the reasoning given by the Court below especially in regard to the absence of any effort and the fact remaining in respect of the Founder Membership and also the typical action taken by the Club in treating the petitioner as a permanent member instead of Founder Member. For the aforesaid reasons, I am of the view that apart from the reasons as spoken to by the Court below and also the reasons as stated above, the very action of the Club is totally tented with one of power and arbitrariness. In view of the same, I do not find any merits to warrant any interference with the order of the Court below. Accordingly, the Civil Revision Petition is dismissed. No costs. _________________ (B.PRAKASH RAO, J) 21st October 2010 Note: LR Copy to be marked B/O RRB