Ashim Kumar Banerjee, J. - (1.) ROYAL Calcutta Golf Club is an organization registered under the Indian Companies Act 1882 as per the Memorandum and Articles of Association of the club. The income and the property of the club would be applied solely towards promotion of the object of the club, in effect, it was a non -profiteering concern and run by the members of the club as per the Articles. Every year, the Board of Directors are elected by the members. The procedure for election is fully prescribed by the Articles. The present dispute would relate to a complaint by a member who would question the election held by the club for constitution of the annual committee including its head, called as captain. The election is generally held in the month of September for one full calendar year. The subject election was held on September 27, 2013 that the appellant questioned as according to him, there were gross irregularity and illegality that surfaced in the said election. The genesis of the dispute would relate back to a large chunk of land belonging to the club that, according to the appellant, the general committee wanted to exploit for commercial gain. They were attempting to hand over the said land to the real estate owners for construction of a five star hotel. The appellant filed a suit being C.S. No. 346 of 2013 inter -alia challenging the resolution Nos. 8 and 9 proposed by the notice dated August 27, 2013 and obtained an Order of injunction restraining the club to take any decision on the said agenda. Perusal of the said agenda would reveal attempt of the club to deal with the land in question. The present suit being C.S. No. 397 of 2013 would relate to a challenge to the election of the captain and the general committee held on September 27, 2013. Coupled with filing of the suit, the appellant moved an application for temporary injunction that the learned Judge declined that too, without calling for affidavit. Being aggrieved, the appellant approached us by filing the instant appeal. THE JUDGMENT AND ORDER IMPUGNED:
(2.) ANALYSIS of the judgment and Order dated December 10, 2013 would reveal as follows: i) Learned Judge considered the earlier suit and the interim injunction granted in the said suit. ii) Learned Judge considered the appellant's contention, fake ballot papers were generated, unauthorized persons voted and the authorized persons were not allowed to vote. iii) Only evidence to support such allegation was a document dated September 28, 2013 as signed by two observers, scrutineers and three other persons. iv) The document would suggest discrepancy in number of ballots printed and used in the election. Ballot papers issued for election for the post of captain, were numbered as 849 whereas the total votes cast were 868 that would have nineteen extra votes. Similar defects were also noticed in case of general committee. v) Per contra, the club and the elected committee members would raise the issue of inordinate delay in approaching the Court pointing out, the appellant did not contest the election and no unsuccessful candidate approached the Court challenging the election. In any event, the difference between the successful and unsuccessful candidate was so much, insignificant discrepancy would not materially change the situation. vi) The learned Judge observed, it was the duty of the officials to stop the election process contemporaneously. They did not do so in absence of any request, it would be difficult at later point of time to entertain such allegation. vii) His Lordship also observed, even if the elected committee was superseded the earlier committee would start functioning that would have no change in respect of the post of captain as the earlier captain was re -elected. viii) The irregularity pointed out, would be dealt with through a regular trial hence, protection was necessary to preserve the ballots. ix) His Lordship appointed the respective Advocates -on -record as Joint Special Officers to preserve the ballots and gave direction for hearing of the suit. x) His Lordship made it clear, the findings were prima facie. RIVAL CONTENTIONS: Mr. Pratap Chatterjee learned senior Counsel appearing for the appellant would submit, the captain had the responsibility to arrange for poll. He would refer to "Shackleton on the Law and Practice of Meetings". 10th edition, in this regard, the author observed, "it is the task of the chairman to give everyone a chance to vote and the detailed arrangements should be directed to that end." Mr. Chatterjee would submit, there was complete failure on the part of the administration particularly, the captain, in absence of any plausible reason as to the ballot papers being found in excess the persons responsible for the election process would owe some responsibility to dispel the doubt in the mind of the Court.
(3.) HE would further contend, the issue being sent for regular trial, would make the lis infructuous as the tenure of the subject committee would be expiring within a few months. If ultimately the plaintiff would succeed in the suit the success would be infructuous.;