2014 (3) TMI 1216 - HC - Indian Laws

Trustee suit rejected under Order VII Rule 11 CPC for lacking charity commissioner consent under sections 50-51 Bombay Public Trusts Act

Rajiv K. Mehta Versus Rekha H. Sheth and Ors.

Bombay HC rejected plaintiff's plaint under Order VII Rule 11 CPC. Plaintiff trustee alleged breach of trust, negligence and misconduct by co-trustees ... Rejection of plaint in suit under the provisions of Order VII Rule 11 of Code of Civil Procedure, 1908 - whether this suit filed by the plaintiff is by or against or relating to the said trust, trustees and others falling under any of the categories provided in section 50 of the Bombay Public Trusts Act, 1950 or under section 51? - whether prior consent of the charity commissioner was required before institution of this suit? - HELD THAT:- On perusal of the plaint as a whole and on meaningful reading of the averments and prayers in the plaint, it is clear that the plaintiff who claims to be one of the trustee has alleged a breach of public trust, negligence, misapplication or misconduct on the part of some of the trustees, has applied for an order and decree against some of the defendants who are admittedly trustees of the said trust and some of them are joined as alleged trustees and also against some of the companies which are alleged to be under control of some of the trustees. The plaintiff has applied for money claim against all the defendants alleging loss caused to the trust by virtue of alleged breach of trust, negligence, misapplication, misconduct or willful default - the case of the plaintiffs falls under sections 50(i), (ii) (a), (d), (f). Whether suit filed by the plaintiff is for enforcement of the personal civil rights of the plaintiff or is on behalf of the trust and acting as trustee of the said trust? - HELD THAT:- The averments made in the plaint along with the prayers in the suit clearly indicates that the plaintiffs have filed the suit claiming to be a trustee and seeks an order and decree against the defendants that various amounts be paid by the defendants to the plaintiffs as trustee or to the said trust. Plaintiff has thus not claimed any personal rights or has not filed the suit which can be considered as a suit for enforcement of the rights of a private nature - A perusal of the averments in the plaint and prayers clearly indicates that the suit and the reliefs claimed relate to the working of the trust and its trustees and therefore, permission of the Charity Commissioner would be required when a suit is instituted by a person having interest of a nature provided in section 50 of the Bombay Public Trust Act. In the facts of this case, one more question which arises for consideration of this court is that since status of the plaintiff as trustee itself is in dispute and that question is pending before charity commissioner admittedly, whether this court can consider such question in this suit which is pending adjudication before the charity commissioner - In case of SOPAN SUKHDEO SABLE AND ORS. VERSUS ASSISTANT CHARITY COMMISSIONER AND ORS. [2004 (1) TMI 726 - SUPREME COURT], Supreme Court has held that for instituting a suit of the nature specified in section 50 of the Bombay Public Trusts Act, prior consent of the charity commissioner is necessary under section 51. Supreme Court in case of CHURCH OF CHRIST CHARITABLE TRUST & EDUCATIONAL CHARITABLE SOCIETY, REPRESENTED BY ITS CHAIRMAN VERSUS PONNIAMMAN EDUCATIONAL TRUST REPRESENTED BY ITS CHAIRPERSON/MANAGING TRUSTEE [2012 (7) TMI 1029 - SUPREME COURT] has held that if the allegations are vexatious and meritless and not disclosing a clear right or material to sue, it is the duty of the trial judge to exercise his power under Order 7 Rule 11. The Supreme Court has adverted to the earlier judgment of that court delivered by the Bench presided by Shri Justice Krishna Iyer which had held that if clever drafting has created the illusion of a cause of action, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the court. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is held that a cause of action must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue - the plaint in no manner whatsoever discloses any cause of action against defendant nos. 12, 15 and 16 and plaint is rejected against defendants nos. 12, 15 and 16 on this ground also. Plaint rejected. Issues Involved:1. Whether the suit filed by the plaintiff is barred under Section 80 of the Bombay Public Trust Act, 1950.2. Whether prior consent of the Charity Commissioner was required before filing the suit under Sections 50 and 51 of the Bombay Public Trust Act, 1950.3. Whether the plaintiff had the liberty to file a fresh suit after withdrawing the previous suit.4. Whether the plaint discloses any cause of action against defendants nos. 12, 15, and 16.Detailed Analysis:1. Bar under Section 80 of the Bombay Public Trust Act, 1950:The court noted that the plaintiff's status as a trustee and the status of some defendants as purported trustees were pending before the Charity Commissioner. The court held that since these issues were pending adjudication under Section 22 of the Bombay Public Trust Act, the civil court had no jurisdiction to decide such questions, invoking the bar under Section 80 of the Act. The court referred to the Supreme Court's judgment in Church of North India, which established that the Bombay Public Trust Act is a complete code in itself, providing a complete machinery for resolving such disputes.2. Consent of the Charity Commissioner under Sections 50 and 51:The court observed that the suit involved allegations of breach of trust, negligence, misapplication, and misconduct by trustees, which fell under Sections 50(i), (ii)(a), (d), and (f) of the Bombay Public Trust Act. The court emphasized that prior consent of the Charity Commissioner was mandatory for filing such suits. The court relied on the Supreme Court's judgment in Shree Gollaleshwar Dev, which held that suits involving trust property and trustees required the Charity Commissioner's consent. The court concluded that the plaintiff's failure to obtain such consent attracted the provisions of Order 7 Rule 11(d) of the Code of Civil Procedure, leading to the rejection of the plaint.3. Liberty to File a Fresh Suit:The court examined whether the plaintiff had sought and obtained liberty to file a fresh suit while withdrawing the previous suit. The court found no evidence that the plaintiff had applied for such liberty. The court noted that the plaintiff's praecipe for clarification did not indicate any application for liberty to file a fresh suit. The court referred to several judgments, including Vimlesh Kumari Kulshrestha and Devidas Tulsiram Brijwani, emphasizing that explicit permission or a clear application for liberty to file a fresh suit was necessary. The court concluded that the plaintiff did not have the liberty to file a fresh suit, making the current suit barred under Order 23 Rule 1(3) and (4) of the Code of Civil Procedure.4. Cause of Action Against Defendants Nos. 12, 15, and 16:The court scrutinized the plaint to determine if it disclosed any cause of action against defendants nos. 12, 15, and 16. The court noted that the allegations against these defendants were vague and lacked specific particulars of fraud or misappropriation as required under Order 6 Rule 4 of the Code of Civil Procedure. The court referred to the Supreme Court's judgments in Church of Christ Charitable Trust and Educational Charitable Society and T. Arivandandan, which stressed the need for clear and specific allegations to establish a cause of action. The court concluded that the plaint did not disclose any cause of action against defendants nos. 12, 15, and 16, leading to the rejection of the plaint against these defendants as well.Conclusion:The court rejected the plaint in Suit No. 2521 of 2008, holding that the suit was barred under Section 80 of the Bombay Public Trust Act, 1950, lacked the necessary consent of the Charity Commissioner under Sections 50 and 51, and did not disclose any cause of action against defendants nos. 12, 15, and 16. The court disposed of the notice of motions accordingly, with no order as to costs.