Dismissed

The Basavanagudi v. Vasudeva Rao

Karnataka HC5 Dec 2023RFA/749/2022

Case brief

AI extract

What is this about?

The appeal by a Club against a decree declaring its termination of a member's membership as illegal was dismissed. The High Court found no infirmity in the Trial Court's conclusion that the Club failed to follow its own bye-laws requiring notice by multiple modes before termination.

What did the court decide?

Appeal dismissed; impugned judgment and decree confirmed; respondent-plaintiff entitled to use Club facilities subject to clearing arrears and continuing payments.

The Basavanagudi Vs Vasudeva Rao — Constitutional and Fundamental Rights | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF DECEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 749 OF 2022 (DEC/INJ)

¶6

BETWEEN:

¶7

THE BASAVANAGUDI

¶8

UNION AND SERVICE CLUB NO 60, SRI KRISHNA RAJENDRA ROAD BASAVANAGUDI

¶9

BENGALURU - 560004 REP BY ITS SECRETARY

¶10

Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

¶11

THE PRESIDENT THE BASAVANAGUDI UNION AND SERVICE CLUB NO 60, SRI KRISHNA RAJENDRA ROAD BASAVANAGUDI BENGALURU - 560004

¶12

(BY SRI. H.A.ASHOK., ADVOCATE)

¶13

AND:

¶14

…APPELLANTS

¶15

VASUDEVA RAO S/O LATE D GOPAL RAO AGED ABOUT 67 YEARS MEMBERSHIP NO V - 19 R/AT NO 19, 4TH MAIN ROAD HANUMANTHANAGAR BENGALURU - 560019

¶16

…RESPONDENT

¶17

(BY SRI. M.K. SABINA., ADVOCATE)

¶18

¶19

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶20

THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.02.2022 PASSED IN OS No.5223/2017 ON THE FILE OF THE X ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION AND ETC.,

¶21

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶22

JUDGMENT

¶23

This appeal by the defendants in O.S.No.5223/2017 is directed against the impugned judgment and decree dated 23.02.2022 passed by the X Additional City Civil and Sessions Judge, Bengaluru, (hereinafter referred to as the ‘Trial Court’ for short), whereby the said suit filed by the respondent-plaintiff against the appellants-defendants for declaration that the notices dated 11.08.2016 and 23.01.2017 issued by the appellants purporting to terminate the membership of the respondent in the appellant No.1-Club was declared as null and void and the appellant No.1-Club was restrained by a decree for permanent injunction from obstructing the respondent-plaintiff from using the Club facilities as its member subject to certain conditions.

¶24

¶25

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶26

Heard Sri H.A.Ashok, learned Counsel for the appellantsdefendants and Smt.M.K.Sabina, learned Counsel for the respondent-plaintiff and perused the material on record.

¶27

The material on record discloses that the respondent is a member of the appellant No.1-Club and appellant No.2 is the President of the appellant No.1-Club. On 11.08.2016 and 23.01.2017, the appellant No.1-Club issued notices to the respondent-plaintiff purporting to terminate his membership putting forth various allegations against the respondent.

¶28

Pursuant thereto, the membership of the respondent in the appellant No.1-Club having been terminated by the appellants, the respondent instituted the aforesaid suit for declaration, permanent injunction and other reliefs.

¶29

The said suit having been contested by the appellants, the Trial Court framed the following:

¶30

ISSUES:

¶31

1. Does plaintiff proves that the termination of plaintiff’s membership by defendant-Club is illegal, null and void?

¶32

2. Does plaintiff proves that two notices dated 11.08.2016 issued by the defendants and final communication dated 23.01.2017 refusing to revoke

¶33

¶34

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶35

termination of plaintiff’s membership in defendant-Club is null and void?

¶36

3. Does plaintiff proves that the defendants are liable to be permanently restrained from obstructing the plaintiff to use the facilities of the defendant Club as its member?

¶37

4. Does plaintiff is entitled for the reliefs sought for?

¶38

5. What order or decree?

¶39

The plaintiff examined himself as PW1 and Exs.P1 to 8 were marked, while the Secretary of the appellant No.1-Club examined himself as DW1 and Exs.D1 to D17 were marked on their behalf. After hearing the parties, the Trial Court answered issue No.1 in the affirmative, thereby holding that the termination of the plaintiff’s membership by the defendant-Club was illegal, null and void. So also, the Trial Court answered issue Nos.2 and 3 in the affirmative in favour of the plaintiff and came to the conclusion that the notices dated 11.08.2016 and 23.01.2017 terminating the membership of the plaintiff in the appellant No.1-Club and refusing to revoke his termination was null and void and consequently, restrained the appellants-defendants from obstructing the respondent-plaintiff

¶40

5 - NC: 2023:KHC:43791 RFA No. 749 of 2022

¶41

from using the facilities of the Club as its member. Accordingly, the

¶42

Trial Court proceeded to decree the suit as prayed for by the plaintiff, aggrieved by which, the appellants-defendants are before this Court by way of the present appeal.

¶43

A perusal of the material on record including the impugned judgment and decree will indicate that the Trial Court has correctly and properly considered and appreciated the entire material on record including the pleadings and evidence of the parties and has recorded the following findings:

¶44

ORDER

¶45

8. Issue No.1 and 2:- Since both these issues are interconnected they are tried together to avoid repetition of facts. It is the specific case made out by the plaintiff that he is the member of the defendant No.1- Club since past 30 years and has been utilizing the facilities of the said Club which has provided to its members many social recreation facilities like indoor and outdoor games including facilities of library, bar, canteen and entertainment etc. He also claims that he has been regularly paying the charges payable to the said Club as its member. However it is his case that due to his personal commitment and other work he could not frequently visited the Club or frequently utilize all the facilities offered by the defendants Club since past one or two years and ultimately he was made aware of the fact that there were certain non-usage charges which are payable to

¶46

¶47

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶48

the Club and other amounts arising out of the use of the recreation and other facilities of the Club and therefore he requested the President of the defendant No.1-Club i.e., defendant No.2 on 20.11.2015 by an application seeking to waive off the pending payments towards non-usage charges on the ground of non-usage of the facilities.

¶49

9. It is the further claim of the plaintiff that once again on 14.01.2016 he made request to the defendants to consider him as a senior citizen member and both his requests were not properly responded to by the defendants-Club and though he was ready to make the payment, it has not been considered by the defendants and ultimately he was issued with two separate notices from the defendants-Club on 11.08.2016 rejecting his request for waiver off pending payments and in other notice there was a mention made about a final notice dated 09.07.2016 being sent to him stated to have been returned as unclaimed and that as per the bye-laws of the defendant Club his membership has been terminated and he was restrained from entering the Club premises. Thus it is the grievance of the plaintiff that these two notices issued by the defendant No.1 Club are contrary to the terms of bye-laws of the Club and also against the principles of natural justice.

¶50

10. The claim of the plaintiff has been categorically refuted by the defendants Club according to whom it had acted in accordance with law and purely as per the terms of the bye-laws of the Club. It is the justification pleaded by the defendants that as per the legislation of the Government of India and the State Government, the members of the Club

¶51

¶52

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶53

are provided with the said facilities which come under the purview of luxury tax payable to the Govt. and therefore all the members have to mandatorily pay luxury tax and there is no exemption in this regard.

¶54

11. It is further contended by the defendants that the decision was unanimously taken by all the members in an annual general body meeting held in the year 2011 wherein it was resolved that in order to maintain the Club apart from recovering the regular charges, the members are also liable to pay the charges of non-usage of the facilities amounting to Rs.165.41 Ps. and the said resolution was already incorporated in the bye-laws after getting approval from the Registrar of the Co-operative Societies and therefore since it was an unanimous decision taken as per the law, the plaintiff is also bound by it being the member of the Club and therefore he cannot seek any exemption in this regard, but despite knowing the said fact he remained in arrears of the charges for non-usage of the facilities for long period and therefore notices were issued to him which were also not responded to by him and ultimately the defendant No.1 Club has to terminate his membership as per law and also as per the terms of bye- laws of the Club. In view of this justification pleaded by the defendants, the burden is on the plaintiff to prove as to how the said notices are bad in law and as to how the termination of his membership is in violation of the bye- laws of the Club.

¶55

12. To substantiate his case the plaintiff has deposed before the Court as P.W.1 and produced 8 documents of which Ex.P.1 is said to be the representation given by him to

¶56

¶57

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶58

the defendant No.1 Club seeking waiver of pending payment for non-usage of facility, Ex.P.2 is the reply issued by the defendant No.1 Club to the plaintiff wherein it is stated that after discussing his request with the Executive Committee it was decided that as per the bye-laws there is no such provision for waiving of the pending payments and thereby his request was refused. Again on the very same day Ex.P.3- letter has been issued by the defendant stating that their final notice dated 09.07.2016 sent to P.W.1 has been returned as not claimed and therefore as per Clause5(iii) of the Bye-laws his membership has been terminated for non-payment of dues and further his entry in the Club premises was also restricted.

¶59

13. As regards Ex.P.4, it is said to be a reminder issued by P.W.1 to the President of the defendant No.1 Club wherein he has reiterated that the notice of termination of his membership is not in accordance with the conditions of byelaws and it is also stated that he will pay the non-usage dues and had sought for reply from the defendant. As regards Ex.P.5, it is another letter issued by P.W.1 on 22.11.2016 to the defendant stating that his suspension is not according to law and to allow him to pay the dues and to restore his membership. He has also produced Ex.P.6 which is a notice of extra-ordinary general body meeting of the defendant Club. This also includes the bye-laws of the Club.

¶60

14. As regards Ex.P7, it is the legal notice issued by P.W.1 to the defendant Club calling upon it to withdraw all its notices issued to him terminating his membership and

¶61

¶62

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶63

restraining him from entering the Club premises. Ex.P.8 is the reply issued by the defendant Club to the letter dated 09.12.2016 issued by P.W.1 stating that his termination cannot be revoked as per the bye-laws. As against this oral and documentary evidence placed before the Court by P.W.1, as stated supra, the Secretary of the defendant Club has also deposed before the Court as D.W.1 and he has also relied on as many as 15 documents in support of their defence.

¶64

15. As regards Ex.D.1, it is the notice which was issued to P.W.1 through registered post which was returned as not claimed by him. Ex.D.2 is the ledger entries maintained by the defendant Club with respect to the minimum usage charges payable to it from the members. As regards Ex.D.3, it is the notice dated 27.07.2016 which was said to have been put in the notice board of the Club showing the dues payable by P.W.1 towards the charges of non-usage of facilities. Ex.D.1 to 3 were the documents admitted by P.W.1 and therefore they were got marked during the course of his cross- examination. As regards Ex.D.4, it is the authorization letter issued to D.W.1 by the defendant Club authorizing him to represent the defendants.

¶65

16. As regards Ex.D.5, it is the Hand Book of Rules and Bye-laws of the defendant Club. Again Ex.D.6 is the statement of arrears of dues payable by P.W.1. Ex.D.7 is the same letter dated 20.11.2015 by P.W.1 which is already marked in his evidence as Ex.P.1. As regards Ex.D.8, it is also the same letter which is marked at Ex.P.2. As regards Ex.D.9, it is the postal AD slip. Ex.D.10 is the notice issued

¶66

10 -

¶67

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶68

to P.W.1 and other members calling upon them to clear the dues payable by them. As regards Ex.D.11, it is the letter dated 19.08.2016 written by P.W.1 to the Secretary of the Club wherein he had pleaded his willingness to make payment. As regards Ex.D.12, it is the same document which is marked at Ex.P.4 in the evidence of P.W.1. Ex.D.13 is the letter issued by P.W.1 to the President of the defendant Club requesting to revoke his suspension of membership. As regards Ex.D.14, it is also a letter dated 29.04.2017 written by P.W.1 addressed to the President of the defendant Club. Ex.D.15 is also one such letter dated 09.12.2016. Ex.P.15 is the same copy of Ex.D.13.

¶69

17. In the backdrop of this oral and documentary evidence placed before the Court by both the parties now it is to be seen whether the disputed notices issued by the defendant Club to P.W.1 are in accordance with law and in accordance with bye-laws of the defendant Club. The undisputed facts involved in the case are with regard to the earlier membership of P.W.1 with the defendant Club and his earlier user of the facilities provided by the Club. It is also an admitted fact that for some period the plaintiff had not regularly used the facilities of the Club which is admitted by him in his pleadings itself. No doubt he had not regularly used the said facilities of the defendant Club for about 2-3 years even as per his own admissions, but despite such non-user of the facilities whether the defendants are justified in terminating his membership for non-payment of dues and whether such termination is in consonance with and in accordance with their bye-laws, is only crucial disputed issue involved in the case.

¶70

11 -

¶71

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶72

18. Both the counsels have submitted their respective written arguments in this case reiterating their respective stands taken in their pleadings. At the first instance the learned counsel for plaintiff in his written argument has once again invited my attention to the terms of bye-laws of the defendant Club and it has been also reiterated as to how the defendant Club has not followed these bye-laws while terminating his membership. It is the specific grievance of P.W.1 that Clause-5(iii) of the Bye- laws specifically mandates issuance of notice by 3 different modes i.e., RPAD, courier, SMS or e-mail. This fact is also not denied by the defendant Club.

¶73

19. It is the allegation of P.W.1 that the defendant Club except issuing notice to him through registered post, has not complied with the other requirements i.e., sending of notice through courier and also through SMS or e-mail and therefore the very issuance of notice without complying with these material requirements of bye-laws is bad in law and consequently the termination of his membership through such mode is also illegal. However, it is the defence of the defendants that the Bye-laws require the issuance of notice through any one of the four modes contemplated therein. How far this contention of the defendants could be accepted, is to be seen.

¶74

20. The learned defence counsel for the first time during the course of his arguments raised the issue regarding the very jurisdiction to entertain and try this suit. He has vehemently argued that the dispute involved in the case is one between the plaintiff Club and its member which touches

¶75

12 -

¶76

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶77

the very management and administration of the Club which is admittedly registered under the provisions of Societies Registration Act and therefore, the competent authority to resolve this dispute is the Registrar and therefore, this court lacks jurisdiction to decide this case. In support of his arguments he has also sought rely on a couple of decisions of the Hon'ble High Court reported in T.P. Davar v/s Lodge Victoria No.363, S.C. Belgaum in Supreme Court Reports 1964 Page-2 wherein it is held that the source of power to expel members is not governed by the provisions of the Act since the members are governed by contracts and rules must be strictly observed and therefore the jurisdiction of the civil court is barred to entertain any such disputes between the members.

¶78

21. Thus what has been observed in the above cited decision is that the source of the power of Associations, Clubs and Lodges to expel their members is the contract on the basis of which they become members and the members are bound by the rules of the Lodge. It is further held that the jurisdiction of civil courts in such cases is limited and it cannot be held that the civil courts sit as a court of appeal from the decision of such a body.

¶79

22. The same principles laid down in the above cited decision where reiterated by the Hon'ble High Court in a subsequent decision reported in Dr.K.T. Shivaiah v/s G.P. Puttaswamy Gowda in ILR 1993 Kar 1563 which is also cited by the learned defence counsel. In this decision, the petitioner therein had questioned the termination of his service as Secretary of the Association and in that context of

¶80

13 -

¶81

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶82

the matter the Hon'ble High Court held that it is the Central Committee which is competent to appoint the Secretary of the Association and can also exercise the powers of the Central Committee and the rules and regulations framed by a Society like the one involved in that case are not statutory provisions as such but they are in the nature of a contract between the members and members and members and the society and therefore these rules are not enforceable in a court of law.

¶83

23. With due regards to the principles laid down in the above cited decisions before considering the application or otherwise of such principles to the present case it is to be seen whether the case on hand warrants the application of those principles. No doubt in the instant case the defendant herein is also not a Society but it is a Club and though it is registered under the Societies Registration Act, but it is to be noted that a Club merely because it is registered under the said Act it does not assume the character of a Society so as to come under the strict purview of the Act. In other words, a Club is not a Society and even in the decisions cited above, it is well settled that the bye-laws of such Societies or associations registered under the Societies Registration Act are supreme as rightly pointed out by the plaintiff’s counsel and therefore the court in the case on hand has to look into whether the defendants Club has acted strictly in accordance with the said bye-laws or whether it has violated the principles of natural justice.

¶84

24. It is further significant to note that as discussed supra, the defendant herein is registered not under the Companies

¶85

14 -

¶86

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶87

Act or Co-operative Societies Act, but it is registered under the Societies Registration Act. Section 25 of the Act gives power to the Registrar to deal with certain aspects concerning the said associations or societies which are registered under the said Act. Section 25 of the Act runs thus:

¶88

Section 25

¶89

Enquiry by the Registrar, etc

¶90

(1) The Registrar may on his own motion and shall on the application of the majority of the members of the governing body or of not less than one-third of the members of the society, hold an enquiry or direct some person authorised by him by order in writing in accordance with the rules made in this behalf to hold an enquiry into the constitution, working and financial condition of a registered society.

¶91

(2) The Registrar or the person authorised by him under sub-section (1) shall have the following powers, namely,-

¶92

(a) he shall, at all reasonable times, have free access to the books, accounts, documents, securities, cash and other properties belonging to or in the custody of the society and may summon any person in possession or responsible for the custody of any such books, accounts, documents securities, cash or other properties to produce the same at any place at the headquarters of the society or any branch thereof;

¶93

(b) he may summon any person who, he has reason to believe, has knowledge of any of the affairs of the

¶94

15 -

¶95

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶96

society to appear before him at any place at the headquarters of the society or any branch thereof and may examine such person on oath;

¶97

(c) (i) he may, notwithstanding anything contained in this Act or in any rule or regulation prescribing the period of notice for a general meeting of the society, require the governing body of the society to call a general meeting at such time and place at the headquarters of the society or any branch thereof and to determine such matters as may be directed by him. If the governing body of the society refuses or fails to call a meeting, he shall have power to call it himself; (ii) any meeting called under sub-clause (i) shall have all the powers of a general meeting called under the rules or regulations of the society and its proceedings shall be regulated by such rules or regulations;

¶98

(iii) when an enquiry is made under this section, the Registrar shall communicate the result of the enquiry to the society concerned.

¶99

25. If we read the above provision contained U/S 25 of the Act, it could be said that the Registrar can though discharge certain duties or has got certain powers to deal with certain issues concerning the administration or management of the said association, but those acts are in the nature of having access to the books and accounts in the custody of the Society, to summon any person having custody of such records, summon any person having knowledge of the affairs of the Society to appear before him and examine such person on oath, may require the Governing Body of the

¶100

16 -

¶101

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶102

Society to call a general meeting and determine such matters as directed by him. Thus nowhere the provision deals with the resolution of any disputes by the Registrar arising between the members or the Club or Association, etc. On the contrary the acts which are enumerated in Section 25 of the Act are purely touching the administration and management of the Society by the governing body. Therefore as rightly pointed out by the plaintiff’s counsel, it cannot be said that there is any such express bar contained under the Act to approach the civil court for resolution of the dispute of the nature which is involved in the present case.

¶103

26. Moreover as stated supra a Club cannot be termed as a Society so as to bring it within the ambit of the Act. Hence, U/S 9 of CPC it cannot be said that this court lacks jurisdiction to entertain the dispute of the present nature. Therefore the exhaustive argument canvassed by the learned defence counsel for the first time in the arguments that this court lacks jurisdiction to adjudicate the present suit, cannot be accepted. Consequently the ratio laid down in the above cited decisions relied on by the counsel cannot be applied to the facts on hand. 27. As discussed supra, if we read Section 25 of the Act, it can safely be held that there is no such express bar for a member of a society to approach the civil court for redressal of his grievance and under such circumstances the jurisdiction of the civil court cannot be held to be ousted. In this regard it would be relevant to refer the decision cited by the plaintiff’s counsel reported in Amiya Vilas Swami & others v/s Shankha Brita Das & others in 2007(6) AIR

¶104

17 -

¶105

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶106

Kar R 562 wherein the Hon'ble High Court has clearly dealt with this aspect as under:

¶107

“Karnataka Societies Registration Act (17 of 1960), S.25- Civil P.C. (5 of 1908), S.9- Ouster of jurisdiction of civil Court- Constitution, of a registered Society- No adequate, effective and sufficient remedy provided under Karnataka Act- Jurisdiction of civil Court cannot be impliedly ousted.

¶108

The jurisdiction of the Civil Court is not expressly barred under the provisions of Karnataka Act. It is only by implication, the jurisdiction of the civil Court is sought to be ousted. Implication is an indirect method of ousting the jurisdiction of the Civil Court. In such a case, the provisions which oust the jurisdiction of the civil Court, must provide for a mechanism to adjudicate such dispute. The cumulative effect of the statutory provision should provide for adequate remedy on par with the jurisdiction of the Civil Court. In such circumstances, it can be inferred that the jurisdiction of the civil Court is impliedly excluded.

¶109

Reading of provisions of Section 25 shows that, the Registrar can hold an enquiry and u/s 25 sub-section (2) clause (c) sub-clause (iii) he can communicate the result of the enquiry to the society concerned. Section is silent as to what happens to the report, or whether the Registrar can take further decision on the basis of enquiry. If a society is to be communicated with the result of the enquiry, whether such a society is bound by the report or whether the society in pursuance of the said report could take action, all that is provided is only enquiry and submitting of report. In this case, reading of S.25 does not provide for raising any such dispute nor provide for adjudication, hence if cannot be inferred or understand to mean that the dispute touching the constitution or a dispute between the members and the members and members and the society could be adjudicated. What is not provided in Law cannot be inferred”.

¶110

18 -

¶111

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶112

28. In view of the principles laid down in the above decision, now it cannot be said that the plaintiff herein has to necessarily approach the Registrar for redressal of his grievance involved in this case, because as stated supra the Act does not specifically provide any effective or sufficient remedy for redressal of all kinds of disputes between the society and its members. In the present case as stated above, the defendant herein is not even a Society in the strict sense, but it is a recreational Club formed by its members. Therefore having regard to the nature of the dispute involved in this case it could safely be held that this Court certainly assumes jurisdiction to decide the case on hand.

¶113

29. Now the next material aspect which requires consideration is as to whether the plaintiff herein could prove that defendant Club before terminating his membership has not acted as per the rules and regulations and the bye-laws of the Club and as to how the act of the defendant has resulted in serious miscarriage of justice and violation of the principles of natural justice. As stated above, it has been the specific grievance of P.W.1 that the defendant has not terminated his membership as per bye- law No.5(iii) which specifically mandates that the notice has to be issued to the members in three different modes i.e., by RPAD, by Courier or through SMS or e-mail. Thus, according to his grievance this requirement is not satisfied by the defendant.

¶114

30. According to PW1, though the defendant has sent him many messages, but the notice sent through registered post has not been served upon him in accordance with law. The

¶115

19 -

¶116

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶117

defendant on the other hand, has contended that though these three modes of service of notice are provided under the bye-laws, but the said rule has to be construed not in the sense that all the three modes are to be mandatorily exhausted, but the notice could be sent through any one of such modes. It would be relevant to refer the evidence of the parties in this regard.

¶118

31. D.W.1 in his cross-examination has clearly admitted that as per the above said bye-laws the notice was required to be sent through all the modes provided under the byelaws with a clear gap of 15 days and in case the plaintiff fails to comply with the said notice issued under all the modes then only his membership needs to be kept under suspension. This material piece of his admission is found in his cross-examination dated 01.12.2021 on page-13 in para2 which reads thus:-

¶119

“It is true to suggest that notice to the plaintiff was required to be sent by RPAD, courier, SMS or through E-mail with a clear gap of 15 days as per the bye-laws. It is true to suggest that in case the plaintiff fails to comply with the said notice issued in all the above modes, then his membership will have to be kept under suspension for 3 months”.

¶120

32. Thus the above statement of D.W.1 clearly falsifies the contention of the defendant that the notice could be issued by any one of the three modes provided under the bye-laws. Even in his further cross-examination he has not specifically stated that they have issued notice dated 09.07.2016 through SMS or E-mail to P.W.1 though he has

¶121

20 -

¶122

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶123

pleaded ignorance in this regard. It is further relevant to refer the material documents in this regard.

¶124

33. The defendant has produced a letter dated 11.08.2016 addressed to P.W.1 stating that the final notice dated 09.07.2016 sent by the defendant was returned as not claimed and therefore his membership has been terminated by the defendant. This final notice dated 09.07.2016 is under serious dispute by P.W.1 which is produced at Ex.D.1. Thus according to the defendant this Ex.D.1 is the final notice which has entitled it to terminate the membership of P.W.1 since he alleged to have not claimed this notice. It is relevant to note that in Ex.D.18 we find the sentence as “by registered post has been returned as not claimed, returned to sender” has been in the hand writing whereas the rest of the contents are typed. We even do not find the initials put to this over writing found in Ex.D.8.

¶125

34. No doubt Ex.D.1 shows that this notice dated 09.07.2016 was returned as not claimed by P.W.1, but as rightly pointed out by the learned counsel for plaintiff, the defendant has not complied with the other requirements of the bye-laws i.e., by issuing notice to P.W.1 through the other modes as enumerated in Clause-5(iii) of the Bye- laws as discussed supra and this fact is also not specifically denied by D.W.1 in his cross-examination. Under such circumstances prima facie it is proved that they have not acted in accordance with their own bye-laws. It is further significant to note that even after issuance of Ex.D.1 notice there was correspondence between the plaintiff and the defendant.

¶126

21 -

¶127

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶128

35. In his cross-examination dated 10.02.2021 D.W.1 has clearly pleaded ignorance to say that whether the defendant has issued notice dated 09.07.2016 through SMS or e-mail to the plaintiff. It is further pertinent to note that though as per the subsequent endorsement found on Ex.D.1 it is stated that the notice was not claimed by P.W.1, but initially there was another endorsement dated 12.07.2017 stating that notice could not be served as it was returned as ‘door locked’ and this fact is also admitted by D.W.1 in his crossexamination dated 01.12.2021. It is also admitted by him that as on the date of issuance of this notice dated 09.07.2016, the old bye-laws were in operation. If that is the admitted fact certainly the defendant ought to have acted in accordance with the said bye-laws by complying with the issuance of notice under all the three modes which are mentioned in Clause-5(iii) of the bye-laws and this material requirement has not been satisfied by the defendant.

¶129

36. It is further significant to note that nowhere in the entire cross-examination of P.W.1 it has been suggested to him that he was duly intimated with regard to termination of his membership by issuance of notice to him by all the three modes as per the bye-laws. However the learned counsel for defendant has urged that there was no occasion for the defendants to issue such notice to P.W.1 through e-mail since he had not furnished e-mail address to the defendant. This explanation offered on behalf of the defendant cannot be sustained for the reason that as per their own bye-laws, the notice was required to be issued not only through RPAD or SMS but also through courier with a clear gap of 15 days

¶130

22 -

¶131

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶132

and it is only after compliance of this material requirement, if the plaintiff thereafter fails to comply with the said notice his membership was to be terminated as per heir bye-laws.

¶133

37. Therefore as rightly urged by P.W.1 the entire approach of the defendant No.1- Club in terminating the membership of P.W.1 is now proved to be contrary to their own bye-laws. However it has been suggested to P.W.1 in his cross-examination dated 27.08.2019 in para-6 that as per Ex.D.3 notice which is said to have been put on the notice board of the Club on 27.07.2016 shows that he was due to pay an amount of Rs.10,579/- to the Club. It is pertinent to note that though as per their records P.W.1 was shown to be due to pay the said sum towards the arrears of charges payable to the Club, but it is significant to note that even as per the own admission of D.W.1 since 2015 till the date they have not allowed the plaintiff inside their Club premises. This Ex.D.3 is dated 27.07.2016. When the defendants had already restrained P.W.1 from entering their Club premises in the year 2015 itself then it cannot be said that P.W.1 must have any access to the said notice board of the Club as on 27.07.2016 so as to come to know about the amount due from him payable to the Club. Therefore even though this document shows his liability for payment of the said sum, it cannot be said that he was made aware of the issuance of notice by the defendants.

¶134

38. Even otherwise it is relevant to note that P.W.1 has been pleading his readiness to clear all dues payable to the Club, but the conduct of the defendant No.1- Club indicates that they have not given him any opportunity of clearing the

¶135

23 -

¶136

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶137

entire dues. On the contrary they have ventured to terminate his membership contrary to their own bye-laws which has certainly resulted in miscarriage of justice as well as violation of principles of natural justice. Therefore both these issues will have to be answered in favour of the plaintiff in the affirmative.

¶138

39. Issue No.3:- P.W.1 has also alleged that the defendants by illegally terminating his membership, have been restraining him from entering the Club premises and from using the facilities of the Club as its member. The fact that P.W1 has been denied the access to the Club and using the facilities of the Club has been admitted by the defendant No.1 although he has pleaded justification stating that since his membership was already terminated P.W.1 has no right to use the Club facilities. In view of the findings rendered on issue Nos.1 & 2 it is now proved that the alleged termination of membership of P.W.1 by the defendant No.1 Club is contrary to the conditions of byelaws of their own Club. As discussed supra, the defendant No.1 Club by not following the due procedure in terminating his membership as per bye-laws, have illegally obstructed him not only from entering the Club premises but also from using the Club facilities as its member.

¶139

40. It is relevant to note that as per the own admission of D.W.1, the plaintiff has been the member of their Club since past 30 years. He has also admitted that till 2016 there was no difference between the plaintiff and defendant No.1 Club. It is also not denied by D.W.1 that P.W.1 had issued request letter to the Club as per Ex.P.1 requesting the defendant

¶140

24 -

¶141

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶142

No.1 Club for waiving off the pending payments for nonusage of the Club facilities. D.W.1 has also admitted that they have not replied to the said letter nor they have responded to many other subsequent request letters of the plaintiff. This conduct of the defendant No.1 Club clearly goes to show that pending consideration of the request letter of P.W.1, the defendant No.1 has attempted to take steps for terminating his membership without responding to his request letters. Under such circumstances it cannot be said that there was any deliberate or intentional omission on the part of PW.1 in clearing the dues towards the non-usage charges.

¶143

41. Moreover the defendant No.1 has also not denied the fact that till this date P.W.1 has been ready to clear the entire dues payable to the Club. Therefore all these facts and circumstances clearly establish that the approach of the defendant No.1 Club towards P.W.1 is arbitrary and contrary to their own rules and regulations and the bye-laws. Therefore they are certainly liable to permit P.W.1 from continuing the membership with the defendant No.1 Club by clearing the dues. Since it is now proved that the defendant No.1 Club has acted contrary to the bye-laws of the Club, they have no legal right to obstruct him from using the Club facilities since it is now proved that his membership has not been terminated as per law. Therefore this issue also will have to be answered in favour of the plaintiff in the affirmative.

¶144

42. Issue No.4 :- In the light of the findings given on all the preceding issues it is now proved that since the alleged

¶145

25 -

¶146

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶147

termination of membership of P.W.1 by the defendant No.1 Club is contrary to law and the rules and bye-laws of the defendant No.1- Club, the defendant No.1 Club is under a legal responsibility to continue the membership of the plaintiff to their Club. However since P.W.1 has also admitted that he has remained in arrears of the charges of non-usage of Club facilities, he is also liable to clear the entire dues so as to get the continuation of his membership with the defendant No.1 Club. Hence this issue is also answered in his favour in the affirmative.

¶148

43. Issue No.5 :- In the light of the findings given on the preceding issues and in the facts and circumstances of the case the parties to the suit are directed to bear their own costs of litigation. In the result the court hereby proceeds to pass the following:-

¶149

ORDER

¶150

The suit filed by the plaintiff against the defendants for declaration and permanent injunction is hereby decreed as prayed for.

¶151

It is hereby declared that the disputed two notices dated 11.08.2016 and 23.01.2017 issued by the defendants are null and void. Consequently the termination of the plaintiff’s membership of the defendants Club by the defendants is illegal.

¶152

The defendants-Club are hereby restrained by an order of permanent injunction not to obstruct the plaintiff from using the Club facilities as its member. The defendants are hereby directed to

¶153

26 -

¶154

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶155

continue the membership of the plaintiff to their Club by recovering the arrears of charges payable by him towards the Club.

¶156

No order as to costs.

¶157

Draw decree accordingly.

¶158

Upon reconsideration, re-appreciation and re-evaluation of the material on record, I do not find any illegality or infirmity in the impugned judgment and decree nor can the same said to be capricious or perverse or contrary to the material on record warranting interference by this Court in the present appeal.

¶159

It is however relevant to state that in order to continue his membership in the appellant No.1-Club, the respondent-plaintiff would necessarily have to abide by and comply with all the terms and conditions of the appellant No.1-Club including payment of all arrears due to the appellant No.1-Club and continue to pay the amounts due to the Club to utilize the Club facilities and pay the sums payable to the appellant No.1-Club as and when they fall due without any default.

¶160

In the result, I pass the following :

¶161

27 -

¶162

NC: 2023:KHC:43791 RFA No. 749 of 2022

¶163

ORDER

¶164

The appeal is hereby dismissed.

¶165

The impugned judgment and decree dated 23.02.2022 in O.S.No.5223/2017 passed by the X Additional City Civil and Sessions Judge, Bengaluru, is hereby confirmed.

¶166

It is made clear that respondent -plaintiff would be entitled to use the appellant No.1-Club as its Member and all the facilities subject to clearing all arrears and continue to pay the amounts due to the appellant No.1-Club without any default.

¶167

In view of the dismissal of the appeal, I.A.No.1/2023 stands disposed of.

¶168

Sd/JUDGE

¶169

JT/-

The Basavanagudi v. Vasudeva Rao

Case brief

What is this about?

What did the court decide?

The Basavanagudi v. Vasudeva Rao

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Yellamma Vs Smt Jyothamma

Smt Pramila Devi B., Vs Smt L Padmini

Sri Srujan Gowda G Vs the Block Education Officer

Sri. T G Babu Vs Sri. a Bhaskar

M/S Satchmo Holdings Limited Vs M/S Pasolite Electricals Pvt. Ltd.

Asha Vs the Chief Secretary