TaxTMI 
TaxTMI 
2020 (8) TMI 431
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.... thirdly, question of granting ad-interim injunction in favour of the petitioner does not arise at all in a suit which is not otherwise maintainable. 2. Shorn off unnecessary details, the following facts are necessary to be recorded for proper adjudication of the instant application under Article 227 of the Constitution of India:- On 12th June, 2019, the Secretary of the Calcutta Cricket and Football Club, opposite party No.1 herein served a notice to the petitioner directing him to show cause within seven (7) days from the receipt of the notice as to why he should not be held guilty for contracting an outstation player to play cricket for the club in violation of the CAB Rules and thereby causing financial loss to the club and violating Rule 5.2 of the Memorandum of Association of the club. The petitioner immediately on 18th June, 2019 filed Title suit No.749 of 2019 challenging the aforesaid show cause notice with a prayer for declaration that the said notice was bad, illegal and inoperative and could not be given effect to and permanent injunction. However, during the pendency of the suit the petitioner was suspended from his membership with effect from 19th June, 2019. Sinc....
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....2019 dismissing the appeal on the following reasons:- 1. On factual score, the case of the parties is based on several documents and counter documents veracity of which can only be considered during trial. 2. The plaintiff withdrew Title Suit No.749 of 2019 without leave of the court to file a separate suit on selfsame cause of action. Therefore Title Suit No.781 of 2019 is not maintainable being barred by the provisions of Order 23 Rule 1 and Section 11 of the Code of Civil Procedure. 3. The respondent club is a company governed by its Memorandum of Association. Therefore the Civil Court's jurisdiction to adjudicate the issue upon a Title Suit is barred under the provisions of Section 430 read with Section 280 of the said Act. 8. I have heard learned Senior Counsels appearing on behalf of the petitioner and opposite parties. Written notes of argument have also been filed by both the petitioners and the opposite party No.1. I have carefully perused the notes of written arguments. 9. Mr. Joy Saha, Learned Senior Counsel for the petitioner submits at the outset that the leaned District Judge, South 24 Parganas by passing the impugned order held that the suit filed by the p....
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....siness and/or administration of the club and therefore, Section 241 of the said Act has no manner of application so far as it relates to mismanagement of the company. 14. Secondly, the suit is not a class action complaining of any oppression to any class or category of members. Suspension of the petitioner does not affect management of the club or that the said order is oppressive qua management of the club. 15. Therefore, it is submitted by Mr. Saha that a suit of civil nature is quite maintainable under the facts and circumstances of this case. In support of his contention, Mr. Saha refers to the following decisions: 1. Vijay Chhibber & Ors. vs. Delhi Gymkhana Club Ltd: (2019) SCC Online Del 9019 : Manu/DE/2100/2019 2. Delhi District Cricket Association vs. Vinod Tihara & Ors. : (2018) SCC on line Del 11419. 16. It is further contended by Mr. Saha, learned Senior Counsel on behalf of the petitioner that the proviso to Section 244 states that the tribunal may, on an application made to in this behalf, waive of any of the requirements specified in Clause (a) or (b) so as to enable the members to apply under Section 241 of the said Act. It is needless to say that Section 24....
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.... the memorandum of articles of the club is valid and legally maintainable before the civil court. The principle of granting ad-interim injunction is to see as to whether the plaintiff has been able to make out an arguable case. In other words presentation of a strong arguable case is the prima facie case which, if established by the plaintiff/petitioner, at the initial hearing, entitle him to get an order of ad-interim injunction because his cause would be frustrated if no injunction is granted and the order challenged by him remains operative. Therefore Mr. saha submits that the impugned order cannot stand and should be set aside. 21. Mr. Joydeep Kar, learned Senior Counsel on behalf of the opposite party No.1 on the other hand argues that the petitioner had instituted Title Suit No.781 of 2019 assailing an order of suspension passed on 19th June, 2019 suspending him from the membership of the defendant No.1 club in contemplation of disciplinary proceeding for alleged gross misconduct by him. In the said suit the petitioner filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure praying for an ad-interim order of stay of operation of ....
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....ot maintainable question of granting interim order temporary injunction does not arise at all. 25. Mr. Kar next draws my attention to Section 280 of the Companies Act, 2013. "Section 280 of the Companies Act, 2013 reads as follows:- 280. Jurisdiction of Tribunal.- The Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of,- (a) any suit or proceeding by or against the company; (b) any claim made by or against the company, including claims by or against any of its branches in India; (c) any application made under section 233; (d) any question of priorities or any other question whatsoever, whether of law of facts, including those relating to assets, business, actions, rights, entitlements, privileges, benefits, duties, responsibilities, obligations or in any matter arising out of, or in relation to winding up of the company, Whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is made or such scheme has been submitted, or is submitted, before or after the order for the winding up o....
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....al of his or her grievances. Under Section 397 of the said Act, a member of a company could approach the NCLT complaining of an action oppressive to any member or members of the company. Section 241 of the said Act enables a member to approach the tribunal complaining of an action prejudicial or oppressive not only to any other member or members but also to him individually. Section 241 of the Companies Act thus permits an individual grievance of a member to be agitated before by the tribunal. According to Mr. Banerjee proviso to Section 244(1)(b) of the said Act does not debar an individual member of the company to agitate his grievance before the tribunal and the tribunal has only jurisdiction to decide the issue. In support of his contention Mr. Banerjee refers to an unreported judgment delivered by the Hon'ble National Company Law Appellate Tribunal in company appeals (AT) No.133 and 139 of 2017 (Cyrus Investments Pvt. Ltd & Ors. vs. Tata Sons Private Limited and Ors). 28. On factual aspect of the matter it is submitted by Mr. Banerjee that the petitioner had unlawfully engaged an outstation player to play for the club in violation of the extant rules framed by the Cricket Ass....
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....when he sought for enforcement of the first claim before the court. On the facts found and as recorded in the judgment of the High Court and with which we find no reason to defer the second demand raised by the respondent was not available to be made a part of the claim made in the first application the power enacted Order 2 Rule 2 CPC is clearly not attracted. 31. Order 23 Rule 1 of the CPC speaks of withdrawal of suit or abandonment of part of claim. Rule 1 of Order XXIII covers two types of cases (i) where the plaintiff withdraws a suit or part of a claim with the permission of the court to bring a fresh suit on the same subject matter. (ii) where the plaintiff withdraws a suit without permission of the court. 32. Order XXIII Rule 1 sub-rule (3) runs as follows: (3) Where the court is satisfied- (a) that the suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or such suit or part of a claim, It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fres....
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....n in the Board of Directors, or manager, or in the ownership of the company's shares, or if it has no share capital, in its membership or any other manner whatsoever, and that by reason by such change, it is likely that the affairs of the companies will be conducted in a manner prejudicial to its interest or its members in any class of members. However, such application shall be made by the member/members as stated in Section 244 of the said Act. I have already stated that the proviso to Section 244 gives discretionary power to the tribunal to permit an individual member to make his grievance against the affairs of the company being conducted in a manner prejudicial to public interest or prejudicial or oppressive to him. Section 245 of the said Act clearly describes the action taken by a member or group of members under Section 244 of the said Act as "class action". Clauses A-H of Section 245(1) describes the nature of breach by the company which may be agitated before the tribunal. It clearly reveals that where the affairs of the company is being conducted without following the memorandum of articles or that a resolution is taken violating the memorandum of articles of the company....