MATLOOB AHMAD & ANR. vs INDIAN ISLAMIC CULTURAL CENTRE & ORS.

2023-10-10 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 26th September, 2023
Pronounced on: 10th October, 2023

+ CS(OS) 331/2023

MATLOOB AHMAD & ANR. ….. Plaintiffs
Through: Mr.Sachhin Puri, Sr Advocate with Mr.Praveen Kumar, Mr.Nitej Kumar, Ms.Shweta Arora, Mr.Nitesh Tiwari and Mr.Abhishek Ranjan, Advocates.
versus
INDIAN ISLAMIC CULTURAL CENTRE & ORS. ….. Defendants
Through: Mr.Jayant Mehta, Sr Advocate with Mr.Javed Ahmad and Ms.Aakriti Aditya, Advocates for D1 and D2.
Mr.Mohd.Amanullah, Mr.Misbha Bin Tariq, Mr.Nadeem Khan, Mr.Azhar Ali, Ms.Nishu Khan and Ms.Shalin Alvi, Advocates for D1, D3 to D8.

CORAM:
HON’BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
I.A.14205/2023
1. It is submitted the applicant no.1-proposed defendant no.9 is duly elected Vice President of defendant no.1-society and pursuant to clause 8 of Memorandum of Association of defendant no.1-society provides the vice president could be one of the office bearers of the defendant no.1-society. Another applicant is proposed defendant no.10, who is a post graduate women and duly elected as an executive member and proposed defendant nos.11 and 12 are duly elected executive members of defendant no.1-society. It is submitted the allegations are directly related to the controversy pending before this Court agitated against defendant nos.1 to 8 in various paragraphs and that besides this, allegations are also made against the executive members in the plaint without their being impleaded as a party to the suit.
2. It is submitted such allegations are baseless and the presence of the applicants herein were to assist this Court in adjudicating the disputes pending between the parties.
3. The learned counsel for the plaintiff has no objection in allowing the present application.
4. In view of the above, the application is allowed the proposed defendants are impleaded as defendant nos.9 to 12 in the present suit. Let an amended memo of parties be filed within two weeks from today.
5. The application stands disposed of.
CS(OS) 331/2023 & I.A.Nos.10160/2023, 10162/2023, 11565/2023, 11575/2023, 12600/2023, 12631/2023, 12915/2023, 16240-41/2023, 16263/2023

6. I.A.No.16241/2023 is filed under Order VII Rule 11 CPC and I.A.No.16240/2023 is filed for recalling of order dated 18.08.2023. I.A.11575/2023 is filed under Order XXXIX Rule 4 CPC on behalf of defendant nos.1 and 2 to initiate the process of convening special general body meeting of defendant no.1-society in terms of requisition dated 10.06.2023 submitted by more than 180 life members. I.A.12600/2023 is also filed by the applicant seeking appointment of a Court observer/Returning Officer to run the affairs of the defendant no.1 society. It is submitted this meeting cannot be convened as there is a doubt qua the genuineness of the members of the society and as such the entire list of life members and other members need to be checked, hence a Court Observer may be appointed.
7. On 10.04.1981 defendant No.1 society was registered under the Societies Registration Act, 1860.
8. In the year 2004 the President – defendant No.2 was elected and has been continuing as President ever since then till 14.06.2023 when he turned 75 years of age and ceased to be the President in terms of clause 8 of the Memorandum of Association.
9. On 28.08.2021, the President removed the then secretary of the defendant No.1 centre in complete violation of the rules and regulations. Mr.Badruddin Khan, the then Secretary made representations to the learned Registrar of Societies to conduct investigations in the wrongdoings of the President and his colleagues vide letters dated 25.08.2021 and 15.09.2021. However, till date no action has been taken by the learned Registrar of Societies against the wrongdoings of the defendant no.2 and has not investigated into the affairs of the defendant No. 1 society.
10. On 03.06.2022 under these circumstances and to highlight the wrongdoings, one of the member Mr.Waseem Ahmed Ghazi of the defendant No.1 filed a writ being WP (C) No. 9270/2022 which was disposed of vide order dated 03.06.2022. Mr.Waseem Ahmed Ghazi made a representation to the learned Registrar of Societies vide Representation dated 11.06.2022, however, the learned Registrar of Societies has failed to take any action in this regard.
11. On 09.05.2023 functioning of the defendant No. 1 had come to such a situation that the President has issued a notice dated 09.05.2023 convening special meeting of the general body on 24.05.2023 in order to amend the memorandum of association vide Notice dated 09.05.2023. The convening of special meeting of the general body by the President was objected to by the Secretary of the defendant No.1 vide letters dated 09.05.2023 and 13.05.2023. In view of the serious tussle going on between different members of the executive and the board of trustee, the functioning of defendant No.1 has been affected requiring immediate indulgence of this Court by appointing an administrator/Observer so that further damage is contained in the interest of members and public at large.
12. On 22.05.2023 in this factual background, the present suit was filed under the provisions of Section 92 of the Code of Civil Procedure on behalf of the plaintiffs who are the members of the defendant No.1 society. The aims and objective of the defendant No.1-Society are in the nature of a public religious trust created for the purpose of promoting an awareness of the ethos of Islamic Culture and to assist in the creation of an ethical society based on tolerance, universal brotherhood, love and charity amongst the members of public.
13. The defendants No.2 to 6 who are in operation and functioning of the defendant No.1 society have allegedly indulged in mismanagement and illegal functioning of the defendant No.1 society. The plaintiffs thus sought permission to file the present suit under Section 92 CPC viz. IA No.10162/2023.
14. It was alleged Mr.Sirajuddin Qureshi has no moral right to continue as President of the defendant No.1-Society as a CBI case of fraud of over 200 crores with various Banks has been registered against Mr.Sirajuddin Qureshi on 24.08.2020 for offences under Section 420/120B IPC read with Section 13(2) and 13(1)(d) of Prevention of Corruption Act. It was alleged a person who is an accused of defrauding financial institutions and banks cannot be entrusted with the office of President of defendant No.1 Society; the notice was issued on 09.05.2023 for convening of Special General Body Meeting on 24.05.2023 without giving a clear 15 days notice and without sending such notice either through registered post or through UPC as is required per Clause 16 (d) (iii) of Memorandum of Association. It is alleged though the requisition was purportedly signed by 52 members but two members have not signed the said requisition and two other members have since withdrawn from such requisition. The necessary documents are annexed with the suit. This Court vide order dated 23.05.2023 had allowed the application under Section 92 CPC vide IA No. 10162/2023 and had also directed that meanwhile no further meeting in respect of the agenda given in notice dated 09.05.2023 be convened till the next date of hearing. The order was passed in the presence of the learned counsel for the defendants appearing on advance notice.
15. In the meanwhile, on 15.06.2023 the defendant No. 2 filed two applications being IA No.11575/2023 and 11565/2023 and this Court was pleased to restrain the defendant No.2, the President of defendant No.1 from convening any AGM or Special General Body Meeting till the next date.
16. On 18.07.2023 this Court made an interim arrangement in view of IANo.12915/2023 filed for immediate release of salaries of the employees and other miscellaneous expenses including electricity and security of the defendant No. 1, by directing that payments shall be made under the signature of the Secretary and Treasurer i.e. defendant Nos.7 and 8.
17. It was also recorded in the said order since the President had attained the age of 75 years on 14.06.2023, hence as per Clause 8 of Memorandum of Association defendant No.2 cannot hold the post of President of defendant No.1. In the meanwhile, parties also tried to settle their dispute through mediation on various dates, however, the talks did not materialize and the arguments were heard on merits by this Court.
18. On 25.08.2023 an application under Order VII Rule 11 CPC was filed by defendant No.2 vide IA No.16241/2023. The defendant No.2 argued the present suit under Section 92 is not maintainable and sought rejection of the plaint. The learned senior counsel for defendant no.1 had relied upon judgment rendered by another Co-ordinate bench of this Court in the matter of Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India, (2018) 171 DRJ 441. However, after arguments the learned senior counsel conceded to the appointment of an observer in the interest of the defendant No.1-Society.
19. Per contra it was argued by the learned senior counsel for the plaintiff, the facts of the cited case are identical to the facts of the present case and as in the cited case the properties both movable and immovable were vested in a board of trustees as recorded in para 15 and 16 of the judgment and in the present case too Article 12 at page 26 of the Documents file provide for vesting of properties in the Board of Trustees of defendant No.1-society. Moreover, a suit under Section 92 can be filed for express or constructive trust created for public of charitable and religious nature. The present society is a public society created for charitable and religious nature; thus the objection regarding Section 92 CPC is not sustainable.
20. During the course of arguments all parties have made suggestion for appointment of an observer due to conflict of interest amongst its office bearers so that interim management made by this Court cannot go on for long. Hence, Mr.Justice Talwant Singh (Retd.) (Mob.No.9910384653) is hereby appointed as learned Court Observer with following powers and functions:
a) To take into charge of membership records, minutes of meeting etc. of defendant no.1 and preserve the same awaiting further orders of this Honble Court regarding;
b) To conduct a membership audit and prepare a list of members and list of voters of the defendant No.1 society;
c) after the membership audit to hold AGM on any agenda save and except the agenda stayed by this Court vide order dated 23.05.2023 i.e. no amendment to the Article of Memorandum of Association regarding removal of upper age limit for the office bearers beyond 75 years of age;
d) to get conducted a financial audit with respect to income and expenditure of the society, if required;
e) after membership audit is completed, to initiate the election process in accordance with Memorandum of Articles of Association and hold elections;
f) the defendant No.2 shall not interfere in the functioning of the centre;
g) the decisions of the Board of Trustees taken in the meetings of Board of Trustees and executive council may be approved by the Observer and to see overall management till election of new executive and board of trustees; which as submitted is in January, 2024;
h) to handover the management of the defendant No.1 society to the newly elected Board of Trustees subject to further orders of this Court.
21. The fee of the learned Court Observer is fixed at Rs.3.00 lacs per month beside expenses as per actuals. The learned Court Observer may appoint an advocate on such terms he may think fit to assist him in discharge of above obligations.
22. With these observations the I.A.12600/2023; 16240/2023; 10160/2023 and 11575/2023 stand disposed of.
23. List CS(OS) 331/2023 with other pending application(s) on 30.01.2024 for further proceedings.

YOGESH KHANNA, J.
OCTOBER 10, 2023
DU

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