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TMI Blog2024 (2) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... the tribunal would allow the application. In the event the tribunal rejected the application the plaintiffs would have to approach the civil court. The plaintiffs were justified in availing of a certain remedy rather than one which did not exist but could come into existence on fulfillment of an uncertain condition. The plaintiffs decision to directly approach this court to file the civil suit was a proper step. Hence there are no reason to interfere with the impugned judgment and order dated 8th February, 2023 - impugned judgement upheld. Appointment of independent officer or court appointed officer to act as an Administrator of the Association - appointment of independent officer or court appointed officer for smooth running of the day to day work of the Association and also only to meet the expenses of the Association to the extent to pay the salary of the employees of the AssociationInjuncting the present executive committee from taking any decision related to any financial matter on behalf of the Association or to spend any money - HELD THAT:- The election procedure of the association conducted in the year 2021 for election of the elected executive committee of the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10, 11, 16, 18, 19, 20, 21, 22, 24, 25, 26, 28, 29, 30 and 31 as President and Executive Committee members of the association was null and void. There was violation of the articles of the association and election conduct rules of the organisation. These defendants have also joined the appeal with the association. 3. This appeal arises out of a judgment and order dated 8th February, 2023 passed by a learned Single Judge of this Court in an application made by the association and the defendants mentioned in that order for rejection of the plaint and dismissal of the suit (GA 2 of 2022). By the said impugned judgment and order, this application was dismissed. 4. Hence this appeal. 5. On 20th November, 2023 the appeal appeared in our list to be admitted. As the point involved was very short we heard out the appeal on the day of admission itself. 6. This appeal is preferred by the association and its executive committee members. They say that they were elected for the year 2021 to 2023. At this point of time it is essential to set out the reliefs sought in the plaint:- a) Decree for declaration the steps taken by the defendant in conducting of the election of the executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was conducted violating the Articles of Association and Election Conduct 8. Rules of the association. 9. The defendants tried to nip the suit in the bud. 10. They took out the said application under Order 7 Rule 11 of the Civil Procedure Code. It was argued by Mr. Karmakar learned advocate for the defendants that the association was a company limited by guarantee and registered under the Companies Act, 1956 and also under Section 8 of the Companies Act, 2013. He placed Section 430 of the 2013 Act which is as follows:- 430. Civil court not to have jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Tribunal or the Appellate Tribunal is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by the Tribunal or the Appellate Tribunal. 11. He said that the dispute in the suit was covered by Section 241(1)(a) of the said Act which provided as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the said Act. The tribunal had exclusive jurisdiction to entertain, try and determine the complaint. 19. The learned trial judge did not decide the point whether the case as made out in the plaint would fall under the aforesaid section. His lordship went by another route. Section 244(1)(b) of the Companies Act, 2013 granted a right to approach the tribunal under Section 214 of the said Act only to a body of shareholders comprising not less than 1/5th of the total number of members of a company under Section 8 of the said Act. 20. The learned trial judge opined that since the plaintiffs were only two in number they did not possess the requisite strength to apply and had rightly approached the civil court by this suit. His lordship negated the argument based on the proviso to Section 244(1)(b) of the said Act that the tribunal had the power to waive the above eligibility requirement. His lordship commented that consideration of the application would involve consumption of time and that the civil suit was a more efficacious remedy for the plaintiffs. 21. I do not find it necessary to go into the issue whether the dispute between the parties was covered by Section 241 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 2023, on an application made on 8th September, 2023. According to the rules of the association, the Annual General Meeting (AGM) had to be held within six months of the closing of the financial year. However in Clause 73(1) of the said Articles, read with the said Act the maximum period should not be more than 15 months between one AGM and the other. The learned judge noted that the AGM for the year 2022 had taken place in September, 2022. The 15 months time period had not expired. 26. Since, the tenure of the present Executive Committee had been extended by the Registrar, court did not appoint any administrator. At the end, of the judgment and order dated 26th September, 2003 the learned judge observed as follows:- Under such facts and circumstances, there has to be a check and balance in the functioning of the executive committee beyond 28th September, 2023. The executive committee shall not be permitted to take any major financial decision post 27th September, 2023 save and except the money that may be required for payment of the staff and employees as also other essential financial needs occurring in course of day to day functioning of EIMPA. I am passing thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021- 2023 was challenged in this suit. It was said that the electoral roll was manipulated and fabricated showing membership of members whose membership had expired or wrongfully renewed. With this untrue voters list, the election was conducted by the defendants so as to elect executive committee members who were not eligible to be elected. 31. The purpose of all this was to run the association illegally according to the dictates of the defendants. 32. During argument it was conceded by both learned counsel that even after extension by the Registrar of companies, the term of the executive committee had come to an end and could not be continued to run the association. The interest of the members of the association would be best subserved if an election of the executive members of the association was conducted under the aegis of the court through an administrator. The administrator would be first responsible for preparation of a true and correct voters list of eligible members and then convene and hold an Annual General Meeting of the appellant association. 33. In those circumstances, the appeal APO 3 of 2024 is disposed of by holding that the suit is maintainable before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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