Back
2017 Supreme(Del) 4395
IN THE HIGH COURT OF DELHI AT NEW DELHI
GITA MITTAL, C. HARI SHANKAR, JJ.
Susheel Kumar Khanna & Anr. - Appellants
Versus
M/s GSBA Trust & Ors. - Respondents
FAO (OS) 146 of 2017
Decided On : 13-12-2017
Advocate Appeared:
For the Appellants : Mr. Mohit Chaudhary, Mr. Kunal Sachdeva, Mr. Divyansh Kishore Sharma
For the Respondents: Ms. Shashi Kiran, Mr. Sujit Kumar Jha
The challenge to the authenticity and bindingness of documents relied upon by the parties and the non-production of original documents can influence the court's decision in setting aside an impugned order and directing a fresh hearing of applications.
Headnote:
Trustee - Dispute over Trustee appointment - Section 92 of the CPC - Order XXXIX Rules 1 and 2 - Order XXXIX Rule 4 - Minutes of the meeting of the trust dated 28th March, 2014 - Agreement dated 28th March, 2014 - Property of the trust situated at Khata No.277, Sikanderpur Bhaiswal, NH-73, Chhutmalpur, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar, Uttarakhand - I.A.No.4046/2015, I.A.No.13497/2015, I.A.No.4045/2015, I.A.No.14172/2017
Fact of the Case:
The plaintiff claimed appointment as a trustee in the defendant no. 1 trust and filed a suit seeking various reliefs. The plaintiff also filed several applications under Order XXXIX Rules 1 and 2 and Order XXXIX Rule 4 of the Code of Civil Procedure.
Finding of the Court:
The court found that the impugned order vacating the interim order was not sustainable due to the challenge to the documents relied upon by the respondents and the non-production of original documents. The court set aside the order and directed the applications to be heard and decided afresh.
Issues: Dispute over trustee appointment, challenge to the documents relied upon by the respondents, non-production of original documents, maintainability of the suit under Section 92 of the CPC
Ratio Decidendi: The court's decision was influenced by the challenge to the documents relied upon by the respondents and the non-production of original documents, leading to the setting aside of the impugned order and the direction for fresh hearing of the applications.
Final Decision: The appeal was disposed of with the order being set aside and the applications directed to be heard and decided afresh.
Gita Mittal, J.
1. This appeal assails the order dated 11th April, 2017 passed in CS(OS)No.532/2015 Shusheel Kumar Khanna & Anr. vs. M/s GSBA Trust & Ors by the ld. Single Judge on I.A.No.4046/2015 (under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure) filed by the appellant/plaintiff and I.A.No.13497/2015 (under Order XXXIX Rule 4 of Code of Civil Procedure) filed by the respondent/defendant nos.1 to 4 & 6.
2. The plaintiff, claiming appointment as a trustee in the defendant no. 1 trust under the resolution dated 12th April, 2014, filed CS(OS)No.532/2015 against the defendants seeking the following prayers :-
“A. Declare that defendant no.2 to defendant no.4 are guilty of breach of trust, towards defendant no.1 trust; and/or
B. Pass a decree for removal of defendant no.2 to defendant no.4 from acting as trustees of defendant no.1 trust and appoint new trustees in their place; and/or
C. Pass a decree of mandatory injunction directing the removal of defendant no.(s)2 to 4 from the Board of Trustee(s) of defendant no. Trust; and/or
D. Pass a decree calling upon defendant no.(s)2 to 4 to render true and proper accounts of defendant no.1 Trust from the date of availing of Term Loan from Oriental Bank of Commerce till date; and/or
E. Pass a decree against defendant no.(s)2 to 4 calling upon the said defendants to restore illegal/wrongful enrichment/monetary gains pocketed by the said defendants to defendant no.1 Trust; and/or
F. Pass a decree of permanent injunction against defendant no.(s)2 - 4 restraining the aid defendants from dealing in any manner/alienating/creating any third party interest in the Trust Property ad measuring 4.542 hectares situated at Khata No.377, Sikanderpur Bhaiswal, NH-73, Chhutmalpur, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar, Uttarakhand.
G. Pass any other order or orders as this Hon’ble Court may deem just and fit in the facts and circumstances of the case”
3. Along with the suit, the plaintiff/appellant had filed I.A.No.4046/2015 under Order XXXIX Rules 1 and 2 on which ex-parte ad interim order was passed on 27th February, 2015 restraining the defendants from selling, alienating or transferring the property of the trust situated at Khata No.277, Sikanderpur Bhaiswal, NH-73, Chhutmalpur, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar, Uttarakand till further orders. The defendant nos.1 to 4 and 6 filed I.A.No.13497/205 under Order XXXIX Rule 4 seeking vacation of the ex-parte order of injunction.
4. It is to be noted that respondent no.5 herein, who was arrayed as defendant no.5 in the suit, supported the claim of the plaintiff/appellant.
5. Leave was sought by the plaintiff to sue under Section 92 of the CPC by way of I.A.No.4045/2015 which was allowed by the ld. Single Judge on 11th December, 2015.
6. It appears that in support of their defence as well as application for vacation of injunction, the respondents are inter alia relying on an agreement dated 28th March, 2014 executed between Dr. P.L. Maghu, settler of the defendant no.1 trust and Dr. Sanjeev Gupta, defendant no.5.
7. It is also an admitted position that the appellants/plaintiffs have disputed the execution of the said agreement. This agreement relates to substitution of the Trustee and makes a reference to the plaintiff/appellant as well. Respondent no.1 had also relied on minutes of the meeting of the trust dated 28th March, 2014. Again the appellant had disputed the correctness as well as authenticity of the record of the minutes. Ld. Single Judge however has relied upon these documents while taking a prima facie view on the impugned order dated 11th April, 2017 and vacating the ex-parte injunction granted in favour of the appellant. As a result, the I.A.No.4046/2015 filed by the plaintiff was rejected while I.A.No.13469/2015 was allowed.
8. Additionally, the ld. Single Judge has observed that a view taken on the application of the appellant being I.A.No.4045/2015 seeking leave to sue under Section 92 of the Co
