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High Court of Judicature at Madras
V. RAMASUBRAMANIAN, J.
Dr. (Mrs.) Rajam Sethuraman & Others
Versus
"Maha Semam Trust", a Public Charitable Trust, Represented by its Registered Office, Chennai & Others
O.A.Nos.158, 159 & 694 of 2012 & 520 of 2013 & A.Nos.1183, 3572, 3573, 3574, 2927, 2928 & 2929 of 2012 in C.S.No.143 of 2012
Decided On : 19-12-2013
Suit filed under Section 92 of the Code of Civil Procedure for framing a Scheme for the administration of the first defendant Trust. Plaintiffs sought various interim reliefs including injunctions restraining the defendants from making any payment or releasing any amount from the current account of the 9th defendant by name SMILE Micro Finance Limited. Defendants 15, 16 and 17 in the suit came up with applications in A.Nos.2927 to 2929 of 2012, under Order I, Rule 10 (2) of the Code of Civil Procedure for striking out their names from the array of parties, on the ground that they are not necessary and proper parties to the proceedings. Court held that the suit against the first defendant is not maintainable due to a procedural lacunae (want of leave under clause 12), which has today transcended the stage of mere technicality, due to the plaintiffs furnishing a wrong address deliberately for the first defendant Trust. Hence, the suit is not maintainable as against the first defendant, it cannot proceed against the other defendants, since the suit is primarily one under section 92 of the Code for framing a scheme for the administration of the first defendant trust. Court also held that the defendants 15 to 17 have been deliberately impleaded with malicious intentions and that they are neither necessary nor proper parties. Hence the applications A.Nos.2927, 2928 and 2929 of 2012 are allowed.
Fact of the Case:
Plaintiffs filed a suit under Section 92 of the Code of Civil Procedure for framing a Scheme for the administration of the first defendant Trust. Plaintiffs sought various interim reliefs including injunctions restraining the defendants from making any payment or releasing any amount from the current account of the 9th defendant by name SMILE Micro Finance Limited. Defendants 15, 16 and 17 in the suit came up with applications in A.Nos.2927 to 2929 of 2012, under Order I, Rule 10 (2) of the Code of Civil Procedure for striking out their names from the array of parties, on the ground that they are not necessary and proper parties to the proceedings.
Finding of the Court:
The suit against the first defendant is not maintainable due to a procedural lacunae (want of leave under clause 12), which has today transcended the stage of mere technicality, due to the plaintiffs furnishing a wrong address deliberately for the first defendant Trust. Hence, the suit is not maintainable as against the first defendant, it cannot proceed against the other defendants, since the suit is primarily one under section 92 of the Code for framing a scheme for the administration of the first defendant trust. The defendants 15 to 17 have been deliberately impleaded with malicious intentions and that they are neither necessary nor proper parties.
Issues: Whether the suit is maintainable against the first defendant due to a procedural lacunae (want of leave under clause 12)? Whether the defendants 15 to 17 are necessary and proper parties to the proceedings?
Ratio Decidendi: The grant of leave is a condition precedent and it should have been obtained at the time of institution of the suit. The plaintiffs did not seek or obtain leave under clause 12, in so far as the first defendant is concerned. Therefore, the suit against the first defendant is not maintainable. If it is not maintainable as against the first defendant, it cannot proceed against the other defendants, since the suit is primarily one under section 92 of the Code for framing a scheme for the administration of the first defendant trust. The defendants 15 to 17 have been deliberately impleaded with malicious intentions and that they are neither necessary nor proper parties.
Final Decision: The suit against the first defendant is not maintainable. Hence, the suit is not maintainable as against the first defendant, it cannot proceed against the other defendants, since the suit is primarily one under section 92 of the Code for framing a scheme for the administration of the first defendant trust. The applications A.Nos.2927, 2928 and 2929 of 2012 are allowed.
1. A Trust by name 'Maha Semam Trust', was created, purportedly as a Public Charitable Trust, by one Dr.Mrs.Rajam Sethuraman, who is the first plaintiff in the above suit. Her daughter by name S.Brathibha and 4 other ladies became the co-trustees at inception. The Deed of Trust was registered as document No.150 of 1999 on 7.7.1999 in the Office of the Sub-Registrar of Madurai (North).
2. It appears that in the year 2001, Dr.Mrs.Rajam Sethuraman resigned from the Trusteeship and her son S.Ramesh was inducted as a Trustee. Subsequently, under a Supplementary Deed dated 10.2.2005, Dr.N.Sethuraman, who is the second defendant herein and who is also the husband of the first plaintiff-Founder Trustee, was also inducted as a Trustee. Though the Registered Office of the Trust was only at No.2/47-B, Melur Road, Uthangudi, Madurai 625 107, as per the Deed of Trust, the Founder Trustee Dr.Mrs.Rajam Sethuraman and 2 others, filed two applications before this Court viz., (i) A.No.42 of 2012 for leave to sue under Clause 12 of the Letters Patent, inasmuch as some of the defendants were residing outside the jurisdiction of this Court and (ii) A.No.123 of 2012 under Section 92 of the Code of Civil Procedure, for leave to institute a suit for the framing of a Scheme and for certain other reliefs.
3. It appears that on 5.1.2012, K.B.K.Vasuki, J., allowed the application for leave under Clause 12 of the Letters Patent viz., A.No.42 of 2012. Subsequently, the application for leave under Section 92 of the Code in A.No.123 of 2012 was also allowed by the same learned Judge, by an order dated 12.1.2012. It must be brought on record here that the application for leave under Section 92 was allowed without notice to any of the defendants. But it must also be brought on record that none of the defendants has chosen to file any application for revocation of leave granted under Section 92 of the Code.
4. After both applications for leave were allowed, the suit got numbered as C.S.No. 143 of 2012. Along with the suit, the plaintiffs filed three interlocutory applications viz.,
(i) O.A.No.158 of 2012, seeking an interim order of injunction restraining ICICI Bank (22nd respondent) from making any payment or releasing any amount from the Current Account of the 9th defendant by name SMILE Micro Finance Limited;
(ii) O.A.No.159 of 2012 for an interim injunction restraining the Indian Bank from making any payment or releasing any amount from the Current Account of the 9th defendant SMILE Micro Finance Limited; and
(iii) A.No.1183 of 2012 for the appointment of a Commissioner/Chartered Accountant or Auditor to inspect all books of accounts, ledgers, computerised accounting, financial dealings including bank accounts, profit and loss account, income tax accounts of the Trust and to submit a report before this Court, within a time frame.
5. It appears that all the 3 applications viz., O.A.Nos.158 and 159 of 2012 and A.No.1183 of 2012, were moved for ad interim ex parte orders on 30.3.2012. On the said date, the same learned Judge, ordered notice in both the applications for injunction viz., O.A.Nos.158 and 159 of 2012. But in the application A.No.1183 of 2012 for the appointment of a Commissioner/Chartered Accountant or Auditor, the learned Judge passed an ex parte order on 30.3.2012, appointing an Advocate by name R.Shivakumar as a Commissioner. The mandate given to the Commissioner was to inspect all the accounts including the bank accounts, profit and loss account, income tax accounts, the reports submitted by the Auditor of the first defendant Trust from 2005 till date and to submit a report, on or before 6.6.2012.
6. It appears that in pursuance of the warrant of commission issued to him, the Advocate Commissioner visited the Offices of the first defendant Trust at Chennai, Madurai and Tirunelveli and made enquiries. Since the warrant of commission enabled the Advocate Commissioner to engage the services of a Chartered Accountant, the Advocate Commissioner see
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