Chand v Maharaj [2012] FJHC 1476; HBC149.2012 (12 December 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBC 149 OF 2012

BETWEEN :

UMESH CHAND, UDAY NAND, RAJ KUMAR, SURESH SINGH, INDAR SINGH, MAHEND LAL, PARMA NAND AND HEMANT KUMAR ALL OF NASOLE, NASINU RESPECTIVELY SELF-EMPLOYED, RETIRED, SELF-EMPLOYED, CARPENTER, RETIRED, PRINTER, BUS DRIVER AND PHOTOGRAPHER AND RAVIN KUMAR OF NADAWA, NADERA, ACCOUNTANT AS THE COMMITTEE OF AND ON BEHALF OF THE SHREE SATYA PRAKASH MANDHIR, AN UNICORPORATED ASSOCIATION HAVING ITS PREMISES AT LOT1-2 SECALA ROAD, NASOLE, NASINU.
PLAINTIFFS

AND:

ASHOK PRASAD MAHARAJ, of Secala Road, Nasole, Nasinu, Retired, RAM PAL of Nasole Road, Nasinu, Retired.
FIRST DEFENDANTS

AND :

YATRI DEO, DHARMEND SHARMA, RAVEN SINGH, RAJEND SINGH, RAJESH KUMAR SINGH, RITESH MAHARAJ all of Nasole, Nasinu and respectively Justice of Peace, Occupation Unknown, Joiner, Tyre Repairer, Joiner, Restaurant Owner, and BIJEND PRASAD of Kewal's Yard, Nasinu, Carpenter.
SECOND DEFENDANTS

COUNSELS : Mr Nandan S of Reddy & Nandan for the Plaintiffs
Mr Pillai of Messrs, Neel Shivam Lawyers for the 1st and 2nd Defendants

Date of Hearing : 5th November, 2012
Date of Judgment : 12th December, 2012

ORDER

Background

1. Originating summons was filed on 26th May 2012 by the Plaintiff with Notice of Motion, supported by the Affidavit of Mr Umesh Chand dated 4th May 2012, and sought the following orders from the court:
   
   • (a) That until further order of the court, the Defendants jointly and severally by themselves and/or by their servants, agents, solicitors and/or howsoever be RESTRAINED from transferring, dealing with, charging, mortgaging, assigning, disposing of any properties of the SHREE SATYA PRAKASH MANDHIR over which the Defendants have ownership or control either directly or indirectly within the jurisdiction of the Court;
     
   • (b) AN INJUNCTION be granted RESTRAINING the Defendants either by themselves and/or their agents, servants, employees from interfering with the day to day running of the SHREE SATYA PRAKASH MANDHIR by the Plaintiffs until further order of the Court;
     
   • (c) AN ORDER that an Annual General Meeting of the SHREE SATYA PRAKASH MANDHIR be called in accordance with its constitution by the Plaintiffs and that only the paid members of the SHREE SATYA PRAKASH MANDHIR be permitted to vote in the said Annual General Meeting;
     
   • (d) AN ORDER that the Defendants deliver to the Plaintiff's solicitors, all the property of the SHREE SATYA PRAKASH MANDHIR in the Defendant's possession and/or control including but limited to the minute book and the keys to the property of the SHREE SATYA PRAKASH MANDHIR within two days of the service of this order on any or all of the Defendants;
     
   • (e) AN ORDER that the Plaintiffs be at liberty to seek the assistance of the Fiji Police Force in the enforcement of these orders;
     
   • (f) COSTS of this application be paid by the Defendants.
     
2. Acknowledgement of service of the originating summons was filed on 13th June 2012 and the matter was called before me on 3rd July 2012 and the counsels for the parties submitted that a settlement is discussed and case to be refixed. Accordingly, case was fixed for mention on 6th July 2012.
   
3. There was no settlement terms tendered to the court on 6th July 2012. Court directed the parties to file the affidavits;
   

i.e. 1. The Defendants to file Affidavit in Opposition before 27/7/2012;

2. The Plaintiff to file Affidavit in reply before 10th August 2012;

Hearing of Arguments was fixed for 20th August 2012.

4. When the matter was called on 20th August 2012 for hearing, the Defendant's counsel stated that one of the 2nd Defendants Mr Yatri Deo was overseas and he couldn't file the affidavit on the date fixed by the court and moved for a further date. There was no objection by the Plaintiff and the court granted time to file the affidavit before 12th October 2012 and Plaintiff to file the Affidavit in Reply before 19th October 2012 and the hearing was fixed for 5th November 2012.
   
5. The Affidavit in response on behalf of all the Defendants was filed by Mr Yatri Deo on 1st November 2012 and when the matter was called for hearing on 5th November 2012, Plaintiff's counsel stated he had consented for late filing of the Affidavit of the Defendants and agreed to proceed with hearing without filing the Plaintiff's Affidavit in Reply.
   
6. When the matter was taken up for hearing, the Plaintiff's counsel stated he is seeking only the Order under para (e) of the Notice of Motion:
   

"para (c) - AN ORDER that the Annual General Meeting of the Shree Satya Prakash Mandhir be called in accordance with its constitution by the Plaintiffs and that only the paid members of the Shree Satya Prakash Mandhir be permitted to vote in the said Annual General Meeting"

7. The Defendant's counsel stated he has no objection for having the Annual General Meeting and all members of the mandhir should be able to exercise their voting rights at the Special Annual General Meeting.
   
8. In the circumstance, both parties are in agreement to hold the Annual General Meeting. However, the Plaintiff's counsel didn't agree voting rights being given to all the members.
   
9. Although, parties agreed to hold the Special Annual General Meeting there was a dispute with regard to voting rights, court directed the counsels to make their submissions; and having heard the submission and considering the documents filed, the court make the following observations:
   
   • (a) This was a dispute between the parties with regard to the Management of Shree Satya Prakash Mandhir;
     
   • (b) It was an admitted fact that following the President of the Committee handing over letter of Resignation dated 25th March 2012 to the Trustees of Satya Prakash Mandhir stating that the Committee members were not supporting the President to run the affairs of the Mandhir;
     
   • (c) On handing over the letter of resignation by the President all Committee members were called for a meeting on 8th April 2012 and all affairs of Management of the Property of the Mandhir and operation of the Mandhir was taken over by the Trustees;
     
   • (d) There were two Constitutions of the Mandhir produced to the courts annexed to the affidavits filed by the parties, i.e. Plaintiffs tendered a Constitution annexed to the Affidavit dated 4th May 2012 marked UC-1 and the Defendants tendered a copy of a Constitution Annexed to the Affidavit dated 31st October 2012 marked "B". Lengthy submissions were made by both counsels with regard to the issue of validity of each constitution. No counsel tendered original constitution at any stage of this case.
     
10. The Plaintiff's counsel submissions with regard to the (UC-1) constitution was:
    
    • (a) That UC-1 is the adopted Constitution of the Mandhir; registered with Registrar General (no documentary evidence was tendered);
      
    • (b) Last page of the Constitution was signed by the President and the Secretary;
      
    • (c) The Constitution tendered by the Defendants marked as "B", no signature was placed by the President and the Secretary, no date of adoption was stated;
      
    • (d) The document marked "B" is a proposal to adopt a Constitution (it was never adopted) and it is a draft;
      
    • (e) No powers were granted under the Constitution to the Trustees to Manage the Property and General Affairs of the Mandhir. The Trustee powers were the powers vested with them under the Trustees Act Cap. 64;
      
    • (f) It was submitted that the new committee should be appointed and all matters pending could be resolved at an Annual General Meeting and new Trustee could be appointed by the new committee. However, voting rights to be restricted to Financial members of the Mandhir
      
11. The Defendant's counsel submitted that:
    
    • (a) The President of the Committee resigned and the Mandhir was handed to the Trustees;
      
    • (b) Copy of the Constitution marked UC-1 is incomplete and should be rejected. No search done at the Registrar General by the Plaintiff (I observe there is no material before me to consider whether the copy of the Constitution tendered as "B" by the Defendants is registered with Registrar General);
      
    • (c) In the Constitution marked UC-1 pages were marked A to I. However, pages E, F, G were missing and no sequence. It's evident that some pages were missing and immediate after clause 10(1), next paragraph starts as para no. 8;
      
    • (d) The Trustees had appointed an interim Committee and Trustees have the supreme power to manage the day to day affairs of the Mandhir (However Trustees duties will not be dealt in this Order, since it is not relevant to decide to make an order to have an Annual General Meeting);
      
    • (e) At an Annual General Meeting, all members should have the voting rights.
      
12. Having heard both counsels, my conclusions are as follows:
    
    • (a) As submitted by the counsel for the Defendants, the copy of the Constitution marked UC-1 is incomplete. Further to the submissions made by the counsel for the Defendants, I observe document marked UC-1 Annexed to the Affidavit of the Plaintiff and found the pages are numbered A to I. However, Pages E, F and G are missing. As such there is no valid copy of the Constitution tendered by the Plaintiff;
      
    • (b) I too agree with the Counsel for the Plaintiff that the copy of the Constitution marked "B" annexed to the Affidavit of the Defendants appears to be a draft. There was no date of adoption and there was no authenticity to the Document marked "B". As such there is no valid copy of the Constitution tendered by the Defendants too.
      
13. On the above findings, I hold there is no proper Constitution filed in this case for consideration. Parties had failed to establish their claims with regard to valid constitution.
    
14. However, I conclude that the directions should be issued by this court (both parties agreed) to hold a Special Annual General Meeting for the following reasons:
    
    • (a) Board of Trustees duties is to look after the interests of the religious organization called "Sri Satya Prakash Mandhir" and its members;
      
    • (b) The Board of Trustees are appointed not to manage mandhir's day to day affairs but to act in the supervisory capacity;
      
    • (c) As such for a temporary period of time an interim committee could be appointed by the trustees, however, such a committee cannot proceed with the Management of the Mandhir for an indefinite period of time. It is unethical and such a situation will put the organization in disastrous situation since the interim committee is under obligation to the trustees and their interests towards the members are minimal.
      
15. In the circumstances, I conclude that for the proper management of the Mandhir, new committee should be appointed by its general membership. In absence of formal constitution, I make Order to hold a Special Annual General Meeting prayed in paragraph (c) of the notice of motion subject to the following conditions:
    
    • (a) The present interim committee of the Mandhir should convene a Special Annual General Meeting within 3 days from the date of this Order and the said meeting should be held within 2 weeks from this Order;
      
    • (b) The venue of the meeting to be notified to all members who had membership of the Mandhir as at 8th April 2012 by the interim committee;
      
    • (c) All members stated in paragraph (b) above are entitled to exercise their voting rights at the Special Annual General Meeting;
      
    • (d) At the said Special Annual General Meeting, new committee should be appointed and such committee should appoint new Trustees or continue with the existing Trustees at the discretion of the new committee;
      
    • (e) No Order for costs.
      

Delivered at Suva this 12th Day of December, 2012.

[C. KOTIGALAGE]
JUDGE