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Smt. Kalpana Sarkar vs Ramkrishna Mission on 27 June, 2003
Cites 19 docs - [View All]
The Societies Registration Act, 1860
Section 19 in The Societies Registration Act, 1860
1 The Bengal Districts Act, 1836 ]
The Indian Penal Code, 1860
Section 6 in The Societies Registration Act, 1860

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Kolkata High Court
Equivalent citations: (2003) 3 CALLT 519 HC
Bench: D K Seth, J Banerjee

Smt. Kalpana Sarkar vs Ramkrishna Mission on 27/6/2003

JUDGMENT

D.K. Seth, J.

1. We had taken up the application under Order 41 Rule 27 of the Code of Civil Procedure (CPC) and allowed the same. The parties have relied on the documents contained therein of the purpose of arriving at the conclusion on the contentions raised by the respective parties.

2. Mr. Banerjee, appearing for the appellant, had raised two very interesting questions on which this appeal was admitted which are set out as under:

" 1. The suit having been filed by the Society without being represented by the Secretary of the Society or any office-bearer thereof authorised by the Governing Body, in view of the provisions contained in Section 19(1) of the West Bengal Societies Registration Act, 1961, the suit is not maintainable in the absence of the locus standi of the society to sue in its own name without being represented by the President or the Secretary or any office-bearer authorised by the Governing Body, particularly, in the absence of any authorisation by the Governing Body authorising any particular person to sue on behalf of the Society.

2. The suit being a suit under Section 13(1)(ff) of the West Bengal Premises Tenancy Act the same can be maintained only by the owner, whereas the Society claimed to be the owner of the property though Section 19 prescribes that all property belonging to the society if not vested in the trustees shall be deemed to be vested in the Governing Body of he Society and as such whether the Society could claim ownership on the property for the purpose of Section 13(1)(ff) of the West Bengal Premises Tenancy Act."

3. In order to substantiate his contention Mr. Banerjee relied upon Sections 18 and 19(1) of the West Bengal Societies Registration Act. We would like to Lake up the ground No. 2 first Section 18 recognises that the property is to be referred to as the property of the Society. In fact, under the West Bengal Societies Registration Act, 1961 (1961 Act), the Society is not treated as or given the status of a body corporate but it can hold property. In Section 18 of the Act, it has been mentioned that all property belonging to the Society, if not vested in the trustees, shall be deemed to be vested in the Governing Body but shall be referred to as the property of the Society. In fact, the vesting of the property was intended to enable the trustees or the Governing Body to deal with the property. The vesting of the property is distinct from the ownership of the property. When a property belongs to a body having a distinct legal entity without being a body corporate in that event, such a body cannot operate except through some authorised member or some office-bearers of such body. In the West Bengal Societies Registration Act, a Society has been defined as a body of persons who are given a status, which is distinct from its members. The liability of the Society does not percolate on the members. Under Section 27 of the West Bengal Act, on dissolution of a Society, the profit cannot be distributed among the members but are to be transferred to some other Society. All the members cannot manage the society. Out of the members of the Society, only a few persons elected as Governing Body consisting of a President, and Secretary and office-bearer. They are authorised to manage the same. Though the Society is a body of the members yet the property vests only to the trustees or to the Governing Body and not with the members nor the members are the owners of such property. The property remains that of the society. It vests in the Governing Body for the purpose of enabling the Governing Body to manage the same. Without this vesting, no one could manage the property.

4. Under Section 18 of the 1961 Act, the property vests in the Governing Body. But by reason of such vesting, Governing Body does not become the owner. The property remains the property of the Society. It is to be so referred to in terms' of Section 18 of the 1961 Act. The Society, therefore, can maintain the suit under Section 13(1)(ff) of the West Bengal Premises Tenancy Act. The contention raised by Mr. Banerjee seems to be devoid of any substance. Inasmuch as the requirement is not that of the Governing Body but of the society represented by its Governing Body. It is the requirement of the society, which is being espoused by the Governing Body.

5. That apart, Mr. Dutt had rightly pointed out that such a ground cannot be taken in the second appeal since this point was neither taken before the lower Appellate Court nor in the suit. Neither any issue was framed to that effect in either of the proceeding. Though a point of law but related to facts. Thus a mixed of law and fact unless taken and issues are framed, the same should not be allowed to be taken in second appeal to spring surprise on the respondent, who did not have the opportunity to defend the same by adducing evidence. In such circumstances, it is all the more necessary to allow the application under Order 41 Rule 21 of Code of Civil Procedure. We may refer to those materials brought on record as and when it would seem relevant or necessary for the purpose.

6. Be that as it may, the defendant herself had admitted that the property belonged to Ramkrishna Mission Ashram, Jalpaiguri. Admittedly, Ramkrishna Mission Ashram, Jalpaiguri is one of the units of Ramkrishna -Mission, the Society, and the same was so found by both the Courts below in the respective findings. It is also found that in her examination, the defendant had admitted that Ramkrishna Mission Ashram, Jalpaiguri is one of the units of Ramkrishna Mission. A point, which has not been taken or established before the Trial Court, unless the same is purely a question of law, cannot be raised in the Appeal Court when such a question relates to a disputed question of fact. In this case, though Mr. Banerjee had pointed out that it is not only a question fact but it has an implication of legal impact hitting at the root of locus standi. But in our view, it is simply a fiction created by law vesting the property in the Governing Body or the trustees. Therefore, in fact, the finding that has been challenged by Mr. Banerjee is a finding of fact without being a substantial question of law, which can be agitated in the second appeal. We are unable to agree with Mr. Banerjee's contention with regard to the second ground taken by him.

7. So far as the first ground is concerned, admittedly, it appears that the suit was filed by Ramkrishna Mission. Section 19 of the West Bengal Societies Registration Act requires that a Society may sue or may be sued in the name of the President, the Secretary, or any office-bearer authorised by the Governing Body in this behalf. In this case, admittedly, the officebearer who had been conducting the suit was authorised by the governing body. A resolution by the governing body (pages 7 and 13 of the application under Order 41 Rule 27) was adopted authorising the General Secretary of the Mission to institute the suit either by himself or by any other officer. The General Secretary of the Ramkrishna Mission, for the time being so authorised, had executed a power of attorney in favour of the Secretary Ramkrishna Mission Ashram, Jalpaiguri (pages 9, 16 and 22 of the application under Order 41 Rule 27), to suit in the name of the Society or on its behalf. It appears from the plaint that the plaint was signed and verified by the constituted attorney so appointed. Therefore, this shows that the suit was being filed and conducted by an office-bearer authorised by the Governing Body. The Secretary Ramkrishna Mission Ashram, Jalpaiguri was duly authorised to conduct the suit and/or empowered to institute and continue the suit by himself.

8. Now we are faced with the question as to whether the suit could be treated to be in order because the suit was filed in the name of the Society and not in the name of the President or the Secretary. In order to examine the said question, it would be necessary to deal with the scheme of Section 19 of the 1961 Act. The object and purpose of incorporating Section 18 and 19 of the 1961 Act is to enable the Society to act through its office-bearers or the Governing Body. It is a legal fiction that has been created so as to implead some person owning responsibilities for the Society. It is a safeguard against the Society to protect the interest of the Society or else no one would have been able to defend the Society and anyone could have sued in the name of the Society. Therefore, to protect the interest of the Society, the authority has been restricted only to the Governing Body. Therefore, the question that has to be looked into is whether it is the Governing Body, which is suing or it is representing the society in the proceeding itself. The framing of Section 19 of the 1961 Act starts with the expression "may". The word may sometimes is interpreted as mandatory. Now it is to be looked into whether the word "may" used in this section is mandatory. Mr. Banerjee had relied on a decision of this Court by a Division Bench in I.C. Bose Road Tenants' Association v. Collector, Howrah, . In the said decision; the Division Bench had held that under Sub-section (1) of Section 19 of 1961 Act, every Society may sue or may be sued in the name of the President, the Secretary, or any office-bearer authorised by the Governing Body in this behalf. In view of Section 19(1), the Society itself has no locus standi to maintain an action and consequently a writ petition.

9. It appears that the said decision was rendered without examining the Scheme and the scope and ambit of Section 19 for which Sections 18 and 19 were incorporated in the Act itself. If we examine the Scheme of Section 19, it appears that Sub-section (2) states that no suit or proceeding shall abate by reason of any vacancy or change in the holder of office of the President, the Secretary or any office-bearer authorised under Sub-section (1). Therefore, it was not the President or the Secretary who were the real persons to continue or maintain the suit. It is the Society, which is interested in the suit for whom the President or the Secretary was acting. Sub-section (3) of Section 19 provides that every decree or order against a Society in any suit or proceeding shall be executable against the property of the Society and not against the person or the property of the President, the Secretary or any office-bearer. Therefore, it is not the President not the Secretary, in their individual capacity, is being sued. It is the Society, which is being sued through its Governing Body. In other words, the Society is the principal and the Governing Body or the President, Secretary or authorised officebearers are the agents or the attorneys of the Society. There is a distinction between the principal and the agent. We cannot confuse the two. Therefore, we cannot interpret the word "may" in Section 19 of the 1961 Act to be mandatory so as to preclude the Society to sue in its own name. It can either sue in its own name or can nominate its President or the Secretary for suing. As pointed out by Mr. Dutt, the plaint was signed and verified by the constituted attorney with regard to which there is no dispute; nor there is any with regard to the authorisation or the ownership of the property, as held earlier. The provisions of Section 19 being permissive, the Society can sue or be sued in its own name. Therefore, the suit filed in the name of the Society is competent and maintainable. In support of our above view, we would prefer to rely on the decision of this Court in Nabadwip Bhajan Asram v. Commissioner of Nabadwip Municipality, in which the Division Bench of this Court had taken a view that the Society can sue in its own name.

10. In Nabadwip Bhajan Asram (supra), it was observed as follows:

"16. ......... we agree with Bhagwati, J. in the construction put by him on sections 6 and 7 of the Societies Registration Act, namely, that the provisions contained therein for institution of suits by or against a registered society are not mandatory and do not militate against a registered society suing or being sued in its registered name. In the absence of any express provision in the statute barring the institution of suits by or against the society in its registered name, the first part of Rule 7 cannot be held to be ultra vires of the Act. We hold accordingly that the suit as framed was maintainable."

11. In Sonar Bangla Bank Ltd. v. Calcutta Engineering College and Ors., , a learned single Judge of this Court had taken the same view that a society can sue in its own name. Paragraph 9 of the said decision runs as under:

"9. ........... I am unable to accept this argument. I am of the opinion that Section 6 of the Act uses the word 'may' and, therefore, it is not mandatory but permissive. The language of the proviso to Section 6 used the expression "it shall be competent". That is only an enabling expression. It does not mean that if the registered society sues as such, then it shall not be competent. Defect, even if any, on this point is cured by the fact that the Secretary of this registered Society, namely, the Calcutta Engineering College himself entered appearance and filed the written statement on behalf of the registered Society. Secretary is one of the persons mentioned under Section 6 of the Act. The view that I am taking that Section 6 of the Societies Registration Act is permissive and not either exclusive or mandatory is supported by the decision of Bhagawati, J. of the Bombay High Court in Satyavart Sidhantalankar v. Arya Samaj, Bombay AIR 1946 Bom 516."

12. In these two decisions, reliance was placed on the decision of the Bombay High Court in Satyauarti Sidhantalankar v. Arya Samaj, Bomay, AIR 1946 Bom 516, wherein it was held that the society is capable of suing in its own name. In paragraph 39, it was observed that :

"39. I am of opinion that the provisions contained in Sections 6, 7 and 8 of the Societies Registration Act are not inconsistent with the user of the registered name of the society in connection with legal proceedings. As Lord Lindley observed in (1901) AC 426. "I do not say that the use of the name is compulsory but it is a at least permissive." It this is the true legal position of a society registered under the Societies Registration Act, the objection of Mr. R.S. Billimoria that the plaintiffs and the defendants are one and the same and that the suit as framed is not maintainable by reason of the society being the plaintiffs as well as the defendants, disappears. The plaintiffs are suing on behalf of themselves and all the members of the society. The first defendant is the president of the society and represents the society. As I have already observed the society on its registrar of Joint Stock Companies becomes a legal entity apart from its members; it would be therefore idle to contend that the society are the plaintiffs as well as the first defendant in this action. In my opinion, therefore, this objection of Mr. R.S. Billimoria fails."

13. These decisions were not considered in the decision by the Division Bench in I.C. Bose Road Tenants' Association,

(supra). A learned single Judge of this, Court in Gautam Majumdar v. Mithun Developments Pvt. Ltd., had taken the same view relying on Nabadwip Bhajan (supra) and Sonar Bangta Bank Ltd. (supra). The Division Bench of Patna High Court in K.C. Thomas v. R.L. Gadcock and Anr., , has taken the same view. We,

therefore, prefer to follow the Division Bench (Nabadwip Bhajan Asram (supra)) in preference to that of the Division Bench decision in I.C. Bose Road Tenants' Association, (supra).

14. Mr. Dutt had contended that the question is purely a technical one and, therefore, the same cannot be a ground of substantial question of law to be agitated in the second appeal. He relied upon a decision in Santosh Hazari v. Purushottam Tiwari, . Specially, he relied on paragraph 12 of the said decision which is reproduced below:

"12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means--of having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradistinction with--technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., , the Constitution Bench expressed agreement with

the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, :

"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law."

and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:

''The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the pleas used is palpably absurd the question would not be a substantial question of law."

15. But this decision does not help Mr. Dutt inasmuch as the two grounds on which the appeal was admitted seem to satisfy the above test of substantial question of law raised in the appeal for its admission. However, on merit, we have answered both the grounds No. 1 and 2 in favour of the respondent and against the appellant as hereinbefore observed by us.

16. The appeal, therefore, fails and is accordingly dismissed,

17. In view of the order passed, the application being CAN 115 of 2003, becomes infructuous and the same is also dismissed.

There will be no order as to costs. The interim order stands vacated.

J. Banerjee, J.

18. I agree.