DR. SHELLY BATRA & ANR. vs M/S OPERATIONASHA, A REGISTERED SOCIETY THROUGH ITS PRESIDENT, MR. ASHUTOSH MISHRA & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 03rd May, 2024
+ CS(OS)153/2020 and CCP(O)57/2020, CRL.M.A.13663/2020, CRL.M.A.2577/2021, I.A.5010/2020, I.A. 6347/2020, I.A. 6348/2020, I.A. 6921/2020, I.A. 8931/2020, I.A. 11915/2020, I.A. 5330/2021, I.A. 12730/2021, I.A. 14607/2021, I.A. 14613/2021, I.A. 14655/2021, I.A. 16164/2021, I.A. 17248/2021

DR. SHELLY BATRA & ANR. ….. Plaintiffs
Through: Mr. Jai Anant Dehadrai, Mr. Martin G. George, Mr. Md. Tasnimul Hassan and Mr. Siddharth Sharma, Advocates.

versus

M/S OPERATION ASHA, A REGISTERED SOCIETY THROUGH ITS PRESIDENT, MR. ASHUTOSH MISHRA & ORS …… Defendants
Through: Ms. Pinky Anand, Senior Advocate with Mr. Ankur Mahindro, Mr. Rohan Taneja and Mr. Asjad Hussain, Advocates for D-1.
Mr. Dushyant Manocha, Ms. Anannya Ghosh and Mr. Brian Henry Moses, Advocates for D-9.

HON’BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
J U D G M E N T
ANUP JAIRAM BHAMBHANI J.
I.A. 5009/2020
By way of the present application filed under section 92 read with section 151 of the Code of Civil Procedure 1908 (‘CPC’), the plaintiffs seek leave to institute the present suit in relation to alleged breach by the defendants of an express or constructive trust in relation to the management and affairs of M/s. Operation ASHA/defendant No.1, alongwith directions for proper administration of the trust and for other reliefs contemplated under section 92 CPC.
2. Notice on this application was issued on 01.07.2020. Three replies have been filed to the present application; one by defendant No.1, a second, jointly by defendants Nos.2 & 3, and a third, by defendant No.9.
3. The court has heard Mr. Jai Anant Dehadrai, learned counsel appearing for the applicants/plaintiffs and Ms. Pinky Anand, learned senior counsel appearing for defendant No.1 at length. Written synopses and additional written submissions have also been filed on behalf of the plaintiffs and defendant No.1.
4. The brief facts that are relevant for purposes of deciding the present application are as follows :
4.1. Plaintiff No.1 is the co-founder of defendant No.1/M/s. Operation ASHA (‘society’) and was the President of the Board of Management of the society (‘Board’) from 2005 until 23rd June 2020, on which date, she claims, she was illegally removed from her position.
4.2. Plaintiff No.2 is an existing member of the Board of defendant No.1 society; and claims to have been involved in the affairs of the society since its inception. Plaintiff No.2 is also the mother of Plaintiff No.1.
4.3. Plaintiffs Nos.1 and 2 claim to be “persons having an interest in the trust” within the meaning of section 92 CPC; and have filed the suit seeking directions relating to the management and control of the affairs and activities of the society.
4.4. Defendant No.1 is a society registered under the Societies Registration Act, 1860 (‘Societies Registration Act’) as a public charitable institution or a non-governmental organisation, engaged in matters relating to public health and welfare; and is stated to be principally engaged in helping patients of tuberculosis from the under-privileged sections of society.
4.5. Defendants Nos.2 and 3 are members of the Board and are presently stated to be at the helm of affairs of defendant No.1 society. One of the allegations in the plaint is that the Board comprises friends and relatives of defendants Nos.2 and 3, and is run in a manner that ensures that the said defendants always control the majority of the members of the Board.
4.6. Defendants Nos.2 and 3 are stated to be in the exclusive possession, custody and control of vital documents, in particular financial information, accounts books etc. relating to the affairs of the society.
4.7. Defendants Nos.4 to 9 are also persons variously connected with the affairs of the society. Defendants Nos.4 to 8 are current Board members; and defendant No.9 is a former Board member of the society. The details of why the said defendants have been impleaded have been set-out in the plaint.
4.8. The essential grievance raised by the plaintiffs by way of the suit is that the defendants, in particular defendants Nos.2 and 3, have been running the society for their personal benefit and gain, and in a manner contrary to the purpose for which the society was established. The allegations are that the said defendants are guilty of mis-use, mis-application and siphoning-off the funds and other resources of the society.
4.9. In the backdrop of these allegations, the plaintiffs claim a decree of declaration setting-aside the decisions taken by the Board, or otherwise by the society, after 01.06.2020, as being illegal and void; with a further declaration that the termination of plaintiff No.1 from the post of President vide Board Resolution dated 23.06.2020 and her ouster from the Board vide Board Resolution dated 27.06.2020, is illegal and void. The plaintiffs also seek a decree for rendition of accounts in relation to the affairs of defendant No.1 society, and in relation to the monies that are alleged to have been mis-appropriated and siphoned-off for the personal use and benefit of defendants Nos.2 and 3. The plaintiffs also seek other consequential and ancillary reliefs, as set-out in the plaint.
5. At the outset, it may be noticed that to address the defendants’ objection as to the valuation of the suit and the court-fee paid thereupon, the plaintiffs have already moved an application bearing I.A. No.6348/2020 under Order VI Rule 17 CPC seeking to amend the plaint, which is pending consideration before this court. However, this objection is not relevant for purposes of the present application under section 92 CPC; and would therefore be considered at the time of deciding the amendment application. It may also be noted that the objection regarding valuation and court-fee has been taken by the defendants in their reply to the present application; but, no application under any provision of the CPC has otherwise been moved by any of the defendants, seeking rejection of the plaint. It may also be noted that as recorded in order dated 25.07.2022, counsel for both sides had agreed that the present application filed under section 92 CPC be decided first.
6. Even otherwise, the issue of grant of leave to ‘institute’ the suit under section 92 CPC must obviously be considered first, before the defendants’ prayer seeking ‘rejection’ of plaint is taken-up under Order 7 Rule 11 CPC.
7. In essence and substance, the allegations made by the plaintiffs, principally against defendants Nos.2 and 3 in relation to the functioning and affairs of defendant No.1, are the following :
7.1. That the defendants have indulged in gross financial impropriety and misconduct in relation to the funds received by the society, by transferring huge sums of money to various shell companies and other entities (such as Asha Technologies Pvt. Ltd., Asha Kalp Healthcare Association, M/s. Age Care Foundations and M/s. Saathi Distribution Pvt. Ltd.).
7.2. That some of the organisations referred to above are controlled by defendant No.2, and that funds have been transferred to these companies/entities even though they have performed no substantial work.
7.3. That funds received by the society have been utilised for activities outside India, which is impermissible, since requisite permission from governmental authorities was not taken for that purpose, and yet benefits were illegally availed by the society under the provisions of the Income Tax Act 1961, which amounts to tax evasion.
7.4. That certain financial transactions were made by the society in favour of defendant No.2’s nephew, without disclosing such transactions in the society’s books of account.
7.5. That the society has not complied with the provision of the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 and the Employees’ State Insurance Act, 1948.
7.6. That defendant No.2 is guilty of siphoning-off funds from the society to his own name, and to the name of other persons related or associated with him.
7.7. That defendant No.2 has transferred large sums of monies to certain employees of the society, and has thereafter coerced such employees to re-transfer the monies to him.
7.8. That defendant No.2 has mis-applied and mis-utilised funds belonging to the society for his personal travel, including for traveling abroad, and for other similar activities.
8. In support of their allegations, the plaintiffs rely upon the contents of an Interim Forensic Audit Report dated 13.08.2021 (‘IFAR’) prepared in relation to the affairs of the society, which report they contend, bears-out the allegations made against defendant No.2, in particular in relation to mis-utilisation, mis-routing and siphoning-off the funds of the society. It may be mentioned however, that the IFAR was prepared after the financial and other affairs of the society were audited for Financial Year 2014-15 to Financial Year 2019-20.
9. At this stage, it is not considered necessary to cite the specifics contained in the IFAR referred to by the plaintiffs to substantiate their allegations. To be sure, a perusal of the executive summary of the IFAR shows, that the report also contains certain observations as regards the actions and omissions on the part of plaintiff No.1 in relation to the affairs of the society.
10. It is the plaintiffs’ contention that the society was established as a charitable institution with the aim and intent of developing, establishing, maintaining and providing health and other related services to the under-privileged; and was engaged in providing free medical aid, especially for patients of tuberculosis from the weaker sections of society in India and abroad. They further submit, that the society used to receive funding through donations and gifts, which itself shows that the society was created for a public purpose.
11. For the above reasons, the plaintiffs contend that the society is a ‘constructive trust’ established for a ‘public purpose’. Furthermore, it is argued that plaintiff No.1, being the co-founder and longtime president of the society, and plaintiff No.2, being an existing member of the Board, are ‘persons having an interest’ in the affairs of the society; and are therefore entitled to maintain the present suit under section 92 CPC.
12. In support of their submissions the plaintiffs have relied mainly upon the following judicial precedents :
12.1. Ashok Kumar Gupta & Anr. vs. Sitalaxmi Sahuwala Medical Trust & Ors.1, to argue that defendant No.1 society fulfils all the ingredients required under section 92 CPC as a ‘constructive trust’ and since its affairs are not being managed properly and there is siphoning of funds, that would certainly fall within the purview of section 92 CPC.
12.2. K. Rajamanickam (D) & Anr. vs. Periyar Self Respect Propaganda Institution, Tiruchirapalli & Ors.2, to say that section 92 CPC also applies to cases of breach of a ‘constructive trust’.
12.3. The Young Mens Christian Association of Ernakulam and Ors. vs. National Council YMCAS of India3, to argue that defendant No.1 society satisfies the test of a ‘constructive trust’ created for a ‘public purpose’; and even apprehensions with respect to commercialisation of trust property are sufficient to grant leave for institution of suit under section 92 CPC.
13. In the replies filed by the defendants, they have variously taken the following objections and made the following submissions objecting to the maintainability of the suit and to the grant of leave to the plaintiffs to institute it under section 92 CPC :
13.1. Defendants Nos.2 and 3, who are husband and wife respectively, have set-out their qualifications, credentials and past experience; and have argued that defendant No.1 is not a ‘trust’ but a ‘society’ registered under the Societies Registration Act. They also argue that the plaintiffs are not ‘persons having an interest’ in the affairs of the society. It is contended therefore that the plaintiffs cannot maintain the suit under section 92 of the CPC.
13.2. The defendants contend that the IFAR was the culmination of a decision taken by the Board on 21.06.2020, whereby both plaintiff No.1 and defendant No.2 were asked by the Board to step-down from the day-to-day management of the society, so that an independent forensic audit of its affairs could be conducted by a reputed agency. It is further submitted, that though vide communications dated 21.06.2020 and 22.06.2020, plaintiff No.1 agreed to co-operate with the Board, by a message of 23.06.2020, she suddenly took a completely different stand, which led to the Board deciding to remove plaintiff No.1 from the post of President; while at the same time also removing defendant No.3 from the post of Secretary of the society. The defendants contend that in view of what was recorded in Minutes of Meeting dated 23.06.2020, the plaintiffs have chosen to file the present suit as an act of retribution to the removal of plaintiff No.1 as President and from the Board of defendant No.1 society.
13.3. The defendants also argue, that in any case, nothing has been placed on record to show how plaintiff No.2 is an interested person for purposes of section 92 CPC. They point-out, that plaintiff No.2 has not even signed the plaint; nor any affidavit in support thereof. It is accordingly argued, that plaintiff No.2 has been impleaded only to fulfil the requirement of section 92 CPC, with no basis for it.
13.4. In their reply to the present application, defendants Nos.1 and 9 have also taken the objection that the relief claimed in the plaint has neither been valued properly; nor has appropriate court-fee been affixed to the plaint; and nor do the reliefs prayed-for fall within the pecuniary jurisdiction of this court. It may be observed however, that these objections are not relevant for purposes of the present application, and in any case, as referred to above, the plaintiffs have sought amendment of the plaint to address these objections at the threshold stage.
13.5. In support of their submissions, the defendants have placed reliance on the following judgments :
13.5.1. Swami Paramatmanand Saraswati vs. Ramji Tripathi4, to argue that where a plaintiff seeks not to vindicate the rights of the public but to seek a declaration of their individual and personal rights, such suit would fall outside the scope of section 92 CPC. The defendants submit that this decision also lays down that the court must see beyond the reliefs prayed-for, and must have regard to the capacity in which a plaintiff is suing, and the purpose for which a suit is brought.
13.5.2. Mahant Gurmukh Das vs. Bhupal Singh & Ors.5, to submit that where a person claims to have an interest in a trust but the opposing party disputes that claim, the court should, on the basis of the material on record, apply its mind to the question and come to a prima-facie conclusion as to whether the person claiming leave can be treated as a person having an interest in the trust.
13.5.3. The Young Mens Christian Association of Ernakulam (supra), to argue that defendant No.1 society does not fulfil the requirements of a ‘constructive trust’ within the meaning of section 92 CPC, since no property has been ‘entrusted’ to it by any third party, which is a necessary requirement as laid-down in this judgement.
14. It is important to note, that during the pendency of the present suit, vide order dated 05.08.2020, this court had also directed a financial audit of the affairs of the society under the Chairmanship of Hon’ble Mr. Justice R. V. Easwar, a former Judge of this court, which audit culminated in a report dated 31.12.2021, being filed by Justice Easwar. The record in fact shows, that under the chairmanship of Justice Easwar, 03 other reports dated 26.08.2020, 03.10.2020 and 09.12.2020 were also tendered, in which Justice Easwar has even suggested the action that needs to be taken to overcome the challenges being faced by the society.
15. Suffice it to say therefore, that whether it be the IFAR or the reports submitted under Chairmanship of Justice Easwar, there is no gainsaying that action is required to be taken to remedy the state of affairs of the society, in particular in relation to its financial affairs and administration, for which directions of the court may be necessary.
16. At the risk of repetition, it may again be observed, that the detailed contents of the various audit reports need not detain the court while deciding the present application, since that would be subject matter of the merits of the present suit.
17. A reference to the relevant portion of section 92 CPC and to certain judicial precedents in that regard, is necessary at this point. The relevant portion of section 92 reads as follows :
92. Public charities.— (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree : –
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) *****
(3) *****
(emphasis supplied)
18. For purposes of deciding the present application, a reference to the following judicial precedents would suffice :
18.1. In Ashok Kumar Gupta (supra), the Supreme Court has summarised the position under section 92 CPC as follows :
“12. Three conditions are, therefore, required to be satisfied in order to invoke Section 92 of the Code and to maintain an action under the said section, namely, that:
(i) the Trust in question is created for public purposes of a charitable or religious nature;
(ii) there is a breach of trust or a direction of court is necessary in the administration of such a Trust; and
(iii) the relief claimed is one or other of the reliefs as enumerated in the said section.
Consequently, if any of these three conditions is not satisfied, the matter would be outside the scope of said Section 92.”
(emphasis supplied)
18.2. A Co-ordinate Bench of this court in The Young Mens Christian Association of Ernakulam (supra) has interpreted the phrase ‘constructive trust’ in the following words :
“19. Section 3 of the Indian Trusts Act reads as under:
“Section 3 – Interpretation clause – ‘trust’ – A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in an accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner”
“20. From a perusal of the above definition, it is clear that the elements that are required to be fulfilled for an express or constructive trust are:
i) Ownership of a property;
ii) A confidence reposed by the owner;
iii) The said confidence being accepted for the benefit of another.
“21. If these elements are satisfied, a trust is created.
“22. In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but any body or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”
(emphasis supplied)
18.3. In fact it is observed, that the enunciation of the law in Ashok Kumar Gupta (supra) came in a factual backdrop, which is strikingly similar to the scenario in the present case, as summarised very pithily in the following paragraphs of that judgment :
“18. In the present matter, Appellant 1, first plaintiff, as a qualified medical professional, was associated with the Trust and what is being complained is that the appellants have been removed from the board of trustees and none of the present trustees are from medical profession. It is in that context that the principal relief prays for framing of a proper scheme of administration and for appointing trustees from medical profession and from the public for proper and effective administration of the Trust … … The relief prayed for cannot be said to be in the nature of vindicating personal rights of the first plaintiff. What was prayed was for framing of a proper scheme of administration so that the Trust which was founded with the object of making available medical and related services to the general public could attain and achieve all its objectives through trustees who are themselves well qualified to undertake such responsibility.
“19. … … It is true that certain paras of the plaint do indicate the grievances that the appellant were completely sidelined while the control of the Trust was in the hands of the defendants concerned. The allegations highlight that the Trust was not being managed properly, was not being managed by medical professionals and there was siphoning off of funds. However, the substance of the matter discernible from Para 21 as well as the principal relief claimed in the suit is quite clear that what was being agitated were the public rights. If in respect of a trust which had set up a hospital, a request was made for framing of a proper scope of administration by appointing trustee from medical profession and from public for proper and effective administration of the Trust, the matter would definitely fall within the scope of Section 92 of the Code.”
(emphasis supplied)
18.4. The other two judgments cited by the plaintiffs i.e., K Rajamanickam (supra) and The Young Mens Christian Association of Ernakulam (supra) also hold to the same effect.
18.5. In all the three aforementioned cases, leave under section 92 CPC was granted to the plaintiff to institute the suit.
19. On the other hand, the reliance placed by the defendants on the decision of the Supreme Court in Swami Paramatmanand (supra) appears to be somewhat mis-placed, inasmuch as in that case the Supreme Court found that the plaintiffs were not suing to vindicate the rights of the public but were seeking a declaration of their individual and personal rights or the individual and personal rights of some other person in whom they were interested. It was in that backdrop that the Supreme Court held that a suit whose primary object or purpose is to remedy the infringement of an individual right, or to vindicate a private right, does not fall within the scope of section 92 CPC. In the said case, the Supreme Court held that from the allegations in the plaint, it was clear that the purpose of the suit was to vindicate individual rights and therefore the suit was not brought to uphold the rights of the beneficiaries of the trust. It is for this reason that the Supreme Court upheld the order of the High Court dismissing the suit, on the ground that it did not fall within the meaning of section 92 CPC. To be sure, in Swami Paramatmanand, the Supreme Court observed as follows :
“11. We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a Trust bring a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought to uphold the right of the beneficiaries of the Trust, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate-General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.
* * * * *
“14. It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 (See Association of R.D.B. Bagga Singh v. Gurnam Singh [AIR 1972 Raj 263 : 1972 WLN 157 : 1972 Raj LW 182], Sohan Singh v. Achhar Singh [AIR 1968 P&H 463 : ILR 1968 Punj 359 : 1968 Cur LJ 480] and Radha Krishna v. Lachhmi Narain [AIR 1948 Oudh 203 : 1948 OWN 179]. But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit purporting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Section 92.”
(emphasis supplied)
20. Therefore, we must not lose sight of the fact, that for purposes of deciding whether leave should be granted under section 92 CPC, it is only the allegations in the plaint that should be looked into in the first instance; it being available to the court to even dismiss the suit if after evidence is led it is found that the breach of the trust alleged was not made-out.
21. To reiterate it is the dominant purpose of the suit, as discernible only from the allegations in the plaint, that is required to be assessed by the court at the stage of considering whether leave should be granted under section 92 CPC to institute a suit.
22. In the present case, the following assertions are found in the plaint :
22.1. Plaintiff No.1 is one of the co-founders of defendant No.1 society and has been a long time President of its Board. Plaintiff No.2 has been associated with defendant No.1 society for a long time and continues to be a member of the Board of the society, even if she is plaintiff No.1’s mother. Infact these assertions appear to reflect the admitted position.
22.2. Plaintiff No.1 has played a pivotal role in the functioning of the society ever since it was established.
22.3. Defendant No.1 society was established and registered under the Societies Registration Act for serving the following main objectives, as culled-out from its Memorandum of Association :
“4. AIMS AND OBJECTS
4.1 MAIN OBJECTIVES OF THE SOCIETY ARE GIVEN BELOW.
4.1.1. To develop, establish, maintain and provide health and all other related services, and to help, aid, assist, arrange, contribute, coordinate, organize, maintain and carry on activities connected with concerns of health, quality of life, nursing facilities, socioeconomic aspects, general welfare and problems of the society with special emphasis on provision of services in the underprivileged sections of the society as per Govt. rules.
4.1.2 To establish hospitals, medical schools and colleges, nursing schools and colleges, dispensaries, laboratories, research institutions and other educational institutions as per Govt. rules.
4.1.3 To purchase and/or otherwise deal in medicines and equipment required for maintenance of health and hygiene.
4.1.4. To aid, promote, establish, maintain, run and encourage alternative systems of medicine and establish training and research centers for this purpose as per Govt. rules.
4.1.5. To open centers and institutes for diagnostic, curative, therapeutic and research of medical sciences as per Govt. rules.
4.1.6. To provide free medicines to the poor.”

And in furtherance of the above objectives, defendant No.1 society has been engaged principally in serving persons from the underprivileged sections of the public in relation to tuberculosis.
22.4. Furthermore, a perusal of the Articles of Association (‘AoA’) of defendant No.1 society inter-alia shows that the management of the society is entrusted to an Executive Committee, which is entitled to raise funds for the society by way of gifts, donations, grants-in-aid or otherwise, which funds are to be used to carry-out the aims and objectives of the society. Attention in this behalf may be drawn to Article 13 of the AoA of the society, which reads as follows :
“13. SOURCES OF INCOME & UTILIZATION OF FUNDS
Funds will be raised by way of grants-in-aid, donations, gifts, subscription fees, and income from investments, loans and other means available to the Society under the Act. Funds will be used to carry out the Aims and Objectives of the Society”

In the opinion of this court, the formal ‘entrustment’ of property or funds by a third-party to defendant No.1 society is not a necessary ingredient to hold that the society is a ‘constructive trust’. If that formality were a sine-qua-non, the very distinction between a ‘trust’ and a ‘constructive trust’ would get obliterated. This court is of the view, that any grant-in-aid, donation or gift made by a third-party to the society is, by its very nature, meant and intended to be used for the benefit of those in need of medical care in furtherance of the objects and purpose of the society. This, in itself, is sufficient to infer that all such grants-in-aid, donations, gifts etc. made to the society are property entrusted to it, by reason of which the society acquires the character of a ‘constructive trust’.
22.5. Also, defendant No.1 is evidently engaged in a public purpose of charitable nature, since it provides medical-aid and relief to patients of tuberculosis who otherwise cannot afford treatment, thereby fulfilling the other criterion of section 92 CPC.
22.6. In this manner, defendant No.1 society fulfils all conditions necessary to invoke section 92 CPC, as enunciated by the Supreme Court in Ashok Kumar Gupta (supra) and the elements required to qualify as a ‘constructive trust’ as laid down by a Co-ordinate Bench of this court in The Young Mens Christian Association of Ernakulam (supra) cited above.
23. In addition, the IFAR as well as the multiple audit reports submitted in relation to the administration and financial affairs of the society, including under the chairmanship of Justice Easwar, clearly disclose that the manner in which the affairs of the society are being run, requires closer consideration and scrutiny.
24. Furthermore, the claims made in the suit also co-relate and fall within the scope of the reliefs contemplated in section 92 CPC, especially section 92(d) and (h) thereof.
25. In the above view of the matter, this court is persuaded to hold that all elements and ingredients of section 92 CPC are satisfied; and that therefore, the plaintiffs are entitled to grant of leave to institute the present suit under section 92 CPC.
26. To obviate any ambiguity, it may be clarified that the grant of leave to the plaintiffs to institute the suit would not prevent the court from dismissing the suit subsequently, if the allegations contained in the plaint are found not to be substantiated.
27. The application is accordingly allowed.

ANUP JAIRAM BHAMBHANI, J
MAY 03, 2024
ds
1 (2020) 4 SCC 321
2 2006 SCC OnLine Mad 379
3 2018 SCC OnLine Del 9909
4 (1974) 2 SCC 695
5 1986 SCC OnLine All 584
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