Jagdish Chander Sachdeva vs Royal Bombay Yacht Club & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2004 Supreme(Bom) 1363

IN THE HIGH COURT OF BOMBAY
Daga V.C., J.
Jagdish Chander Sachdeva.... Appellant.
Versus
Royal Bombay Yacht Club others.... Respondents.
Appeal From Order No. 597 of 2003, decided on 24-9/1-10-2004.
Advocates appeared :
Harish Jagtiyani i/b. Bharat Joshi, for appellant.
A.K. Abhyankar with A.N.Parekh i/b. Crawford Bayley Co., for respondents.

Headnote:Club Membership - Grant of temporary injunction. - Since action of ’club’ is in breach of Rule 43 and also violative of principles of natural justice hence order removing member from membership of club set aside and injunction granted. - Law of injunction is well-settled that granting or refusing to grant temporary injunction is governed by three well-established principles, (a) facie case; (b) whether balance of convenience is in their favour; and (c) whether petitioners will suffer irreparable injury, if the temporary injunction is not granted. The party who seeks aid of injunction must show that the act complained is in violation of his right and whether there is fair and substantial question to be decided by the parties and there is bona fide contention between the parties. If such contentions are available, then relief needs to be granted. It is then duty of the Court to consider the material placed before granting or refusing to grant injunction and consider the documents, if any, before an order of interim relief can be passed. The prima facie case does not mean a case to succeed but a case which fairly needs an enquiry. At the same time while granting interim relief the Court has also to take into account whether the interim relief is claimed in the aid of final relief so as to maintain status quo ante or to preserve status of parties. Appellant permanent member of the club has been expelled from the club on his failure to shift to room Nos. 49/50 originally allotted to him from room Nos. 33/34 temporarily allotted to him whilst his original premises were being repaired on renovated, invoking Rule 43(vii) of the Club Rules, without affording any opportunity of hearing. The sweep of Rule 43 in general would demonstrate that delinquent is entitled to get opportunity of hearing in every case falling in either of the classes of the said rule. As such, logically, it is reasonable to infer that opportunity of hearing cannot be denied to a person who is within the sweep of Clause (vii) of Rule 43. It would amount to practising cause. Thus, the action of the Club is, prima facie ; contrary to clause (vii) of Rule 43 for not following procedure laid down under Rule 42 of the Club rules which stands incorporated in Clause (v). Clause (v) stands incorporated in Clause (vii) with additional item of misconduct notwithstanding its omission in clause (v) of Rule 43 of the Club rules. In the light of the aforesaid interpretation the impugned action of the Club is in breach of Rule 43 and also violative of principles of natural justice engrafted therein. The appellant has established prima facie case and prejudice by not following principles of natural justice by the Club. He is deprived of his right to persuade for lesser punishment. So far as the balance of convenience is concerned, one can visualise that the appellant, as on date, has no place to reside in Mumbai. For past more than two decades he is occupying Club accommodation. He has no infrastructure to set up separate home. If he is thrown out of the Club, it would be difficult for him to get immediate accommodation in south Mumbai. Keeping all these factors in mind, the balance of convenience has to be inferred in favour of the appellant. The possible injury, which the appellant would suffer on account of refusal of grant of injunction, hardly needs any elaborate discussion in the light of the facts stated herein. The Club, on the other hand, can be suitably protected by suitable order to secure their recovery. Thus all the three ingredients warranting grant of interim injunction are established by the appellant. The impugned order is unsustainable as the same is based on erroneous interpretation of Rule 43(vii) of the rules of the Club. The same is, therefore, liable to be set aside. Accordingly, the impugned order is set aside and the appellant is held entitled to get injunction as per the order as passed.

JUDGMENT - Daga V.C., J.: - The present appeal is directed against the order dated 2nd June, 2003 passed in Notice of Motion No. 3963 of 2002 in S.C. Suit No. 6854 of 2002 by the Bombay City Civil Court, whereby the notice of motion was rejected with costs.

The Factual Backdrop :

2.The factual backdrop, in nutshell, is that the appellant is a permanent member of the respondent club, viz., Royal Bombay Yatch Club (hereinafter referred to as "the Club" for short) since 1971. According to him, his membership entitled him to allotment of a room for long term stay in the club premises. In 1973, he was allotted room Nos. 49/50 and since then he has been residing there till date. He married in the year 1992. His wife has also been residing with him in the said room since her marriage. According to the appellant, this is the only place of him for his residence in Mumbai.

3.The genesis of the dispute, which is the subject-matter of the present litigation, is that the appellant did not shift, for the period from May, 2002 to November, 2002, from room Nos. 33 and 34, which were temporarily allotted to him whilst his permanent room Nos. 49/50 was under repairs and renovation. This led to termination of his membership under Rule 43(vii) of the Club Rules. This action of the Club is the subject-matter of suit filed in the City Civil Court at Bombay. The notice of motion to seek interim relief same to be rejected. This rejection is the subject-matter of this appeal at the instance of the appellant, a Club member.

Rival Contentions :

4.The rival contentions of the parties hereto in relation to this dispute are: According to the appellant, his original room Nos. 49/50 had not been rendered habitable, after the so-called repairs and this prevented him from re-shifting to these rooms from room Nos. 33 and 34 which were temporarily allotted to him. According to the appellant, the big whole made by rats on the bedroom door was not repaired. The flooring of the room remained shabby. The glossy tiling in the bath room was slippery and dangerous and the bathtub being small was unfit for taking bath and the toilet was also not properly tiled. The wire mesh on windows to prevent entry of rodents, was not fixed. He was not provided with a double bed even though his membership entitled him to double occupancy. The appellant complained to the club about above stated repairs since 1997 but were not carried out.

5.According to the club, the appellant was merely putting up some lame excuses to justify his stay in more expensive accommodation than the original rooms allotted to him. Failure on the part of the appellant to shift to Room Nos. 49/50 was the ground for expelling him from Club by invoking Rule 43(vii) of the Club Rules.

6.Copious correspondence in this regard appears to have been exchanged between the appellant and the Club. If one turns to the correspondence between the parties, repeatedly the appellant was asked to shift to room Nos. 49/50 from room Nos. 33/34, which were temporarily allotted to him. He did not shift for one or the other reason. He went on giving some lame excuses for not shifting from room Nos. 33/34 and this conduct of the appellant compelled the Club authorities to take action against him.

7.The correspondence between the parties, prima facie; is not in dispute. The repeated requests to the appellant at the instance of the Club to shift from room Nos. 33/34 to room Nos. 49/50 is also prima facie not in dispute. Avoidance on the part of the appellant to shift from room Nos. 33/34 to room Nos. 49/50 is a prima facie picture emerging from the voluminous correspondence between the parties which ensued between them when they were not on war with each other. Therefore, prima facie; it reflects a true picture prevailing at the relevant time.

8.The authorities of the Club having lost their patients, appears to have resolved to give the appellant a choice to select any two adjacent rooms of his choice on third or fourth floor at the same compe

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