Home | Databases | WorldLII | Search | Feedback High Court of Fiji

  Download original PDF

Kapoor v Kumar [2020] FJHC 207; HBC73.2020 (10 March 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBC 73 of 2020

BETWEEN: SHASHI KAPOOR and KEITH ANAND SINGH, both of Vuci Road, Nausori, as lawful remaining Trustees of the AASHIRWAAD RAMAYAN MANDALI, an unincorporated trust and the governing body of the AASHIRVAAD NAAG TEMPLE.

PLAINTIFFS

AND: RAKESH KUMAR, DIVESH KARAN, DANIEL SUJIT LAL, RAMENDRA KUMAR, FRANCIS RAVIN LAL and SATYA NAND MAHARAJ, all of Vuci Road, Nausori, as former office bearers and members of the AASHIRWAAD RAMAYAN MANDALI.

DEFENDANTS

Counsel : Plaintiffs: Miss Naidu. S
Defendants: Mr Chand. A
Date of Hearing : 09.03.2020
Date of Decision : 10.03.2020

JUDGMENT

INTRODUCTION

1. Plaintiffs are trustees of a religious body Aashirvaad Ramayan Mandali. They were appointed in 2016. They were appointed for life subject to dismissal. There was no provision in the Constitution of the religious body Aashirvad Ramayan Mandali (The Organization) as to removal of trustee. As to what causes or reasons they could be removed was not stated and there was no procedure for removal in the Constitution. There was provision for removal of office bearers, due to mismanagement. Again there was no provision in the constitution as to definition of mismanagement and or how to determine that there was mismanagement. Under the constitution trustees obtain ‘full voting power’. Plaintiffs as trustees had ‘removed’ all office bearers for ‘mismanagement’ on 2.7.2019 and an ‘interim committee’ was appointed. Defendants. This was done upon inter alia failure to provide audited accounts for the financial years 2018. There is a dispute as to power conferred to trustee for such removal as there is an issue whether it was a unanimous decision. After alleged removal Defendants provided audited statements for the financial year 2018 at AGM called by them. Plaintiffs state that they were not provided with this statement. Defendants state that there was no such requirement to submit audited accounts to trustees, and they had placed the accounts before AGM which was held on 1.12.2019. Plaintiffs refrain from attending said AGM though they had full voting rights in the said AGM. According to Plaintiffs, said AGM and all the acts of Defendants after appointment interim committee on 2.7.2019 were illegal. Defendants on 11.11.2019 conducted a meeting to pass a vote of no confidence against trustees prior to AGM and new trustees were allegedly appointed in place of Plaintiffs in AGM. These new trustees are yet to be registered. Plaintiffs dispute said appointment of new trustees and their removal. So both parties alleged the other party’s removal from office. Plaintiffs are seeking orders inter alia to refrain Defendants from exercising their official status in the Organization. While there was a dispute between trustees and office bearers there was an attempt by office bearers to bring the Organization under another religious body (SSDPS). They allege such a decision was taken in AGM but no such evidence produced at this hearing. Plaintiff allege interference from this SSDPS in their affairs and even attending ‘AGM’. Plaintiffs state that the Organization remained independent for a long period of time and it should not be affiliated to SSDPS or any other body considering small number of membership, and wishes of them to remain independent. Due to this dispute functions of the Organizaton is badly affected. Even the bank account maintained by Organization was closed by the bank as they were getting conflicting instructions from trustees and office bearers. There are serious questions of law as to interpretation of the Constitution and also finding of facts including disputed fact as to unanimity of the decision of trustees in terms of Clause 16.3 of the Constitution. When considering balance of probability as a first step both parties should recognize each other and functions of the Organization should continue as an independent body as it was done for decades, as an interim measure. Devotees religious rights should not be affected due to the dispute between two parties. There should also be financial transparency of the Organization as no audited accounts for 2019 prepared so far.

FACTS

2. The Plaintiffs are the remaining trustees of the Organization.
   
3. On 10 .3. 2016, during an AGM the Organisation made the following appointments:
   
   1. As Trustees
      
      1. Shashi Kapoor(first named Plaintiff)
      2. Keith Anand Singh(Second named Plaintiff)
      3. Raghwa Nand Maharaj ( deceased in October, 2019)
         
   2. As Office Bearers
      
      1. President — Madan Pillay
      2. Secretary Daniel Sujit Lal (Third Named Defendant)
      3. Treasurer Satya Nand Maharaj (Sixth Named Defendant)
      4. Committee Members - Shelvindra Prasad, Rakesh Kumar (First Named

Defendant), Narain Singh.

5. Internal Auditor — Francis Lai (Fifth Named Defendant)
   

4. First named Plaintiff was the Secretary of the Religious Organisation since 2000 to 2016. Second named Plaintiff was the President from 2010 to 2016. The third Trustee, Raghwa Nand Maharaj, died in October 2019 while disputes are going on between trustees and Defendants.
   
5. On 21 April 2016 the Religious Organisation was formally registered under a Deed of Trust and bearing Registration Number 48244 with the Registrar of Deeds.
   
6. On the same day, the Organisation adopted its Constitution (the Constitution) as its principle governing document and this was registered with the Registrar of Deeds along with the Deed of Trust.
   
7. As per Clause 3 of the Constitution, the Organisation, states the objectives and they are
   
   1. To protect the interest of all financial members of the given year;
      
   2. To undertake the temple dwelling by:
      
      1. Appointment of Trustees;
      2. Lease and Rental settlement;
      3. FEA and Water settlement;
      4. Neatness, and cleaning of property;
         

100. To perform all religious functions in the Temple falling under the Sanatan Dharam Calendar;
     

4. To perform Ramayan Katha every Tuesday, in addition to a request by a member;
   
5. To make the Temple available to all devotees of Sanatan faith for religious purpose; and
   
6. To promote and foster, culture, customs and religious teaching to the community.
   

8. On 12.4.2016, the Organisation, through the Plaintiffs, obtained a lease from iTaukei Land Trust Board. This land is described as Waimate No.2, Subdivision, Lot 10, Nausori. A temple called the Aashirwaad Naag Mandir is situated on this property and is administered by the Organisation.

9. On 9 3.2018, the Defendants, held an AGM for the year 2017. This AGM was disputed.
   
10. While the Plaintiffs are signatories to the HFC Bank Account, the First. Third and Sixth named Defendants are signatories to the ANZ Bank Account. This ANZ Bank account No 194471 was closed on 13.01.2020 and cheque for the amount of credit balance was President of Organizaiton.
    
11. Plaintiffs disputed AGM held on 9.3.2018 but there are no minutes of the said AGM submitted at this hearing.
    
12. Clause 16 of the Constitution reads:

“16.1 The trustees shall have the full voting right.

16.2 In event of mismanagement of any mandali activities, the trustees have the right to take over the management of the organisation upon a written submission with 75% members agreeing. They then call a Special General Meeting as soon as possible, but no later than one month from the date of take over, to look after the affairs of the organisation.

16.3 All trustees MUS T agree with each other on any decision to be taken.”

13. Clause 9.5 reads:

“Annual General Meeting - the Annual General Meeting of the Religious Organisation shall be held on the first Sunday of each year, except the first Sunday is the first Sunday of the year. The financial year ending on the 31^st December the previous year. Financial Members shall be given written notice of the date not less than seven (7) of the AGM.”

14. Clause 4 of the Constitution speaks to membership guidelines as follows:
    
    1. Membership shall be open to individuals of the Sanatan faith over the age of 18 years who have vested interest in the Religious Organisation, and the next of kin of those who were members.
    2. Membership is approved in the AGM and continues until the end of each financial year;
    100. Membership fees per member is determined and paid for prior to the AGM;
    4. A financial member shall contribute accordingly for functions as determined and approved in the general meeting.
       
15. Clause 11 of the Constitution states that the duration for all office bearers shall be for one year. All executive positions shall be expired in the AGM.
    
16. There is no minimum number of members to be present in AGM.
    
17. Plaintiffs dispute membership as membership of members terminates at the end of financial year. A member should be a paid member to participate in AGM in terms of clause 4.1 of the Constitution.
    
18. On 12.3.2018, the Plaintiffs wrote to the Defendants advising them of the Plaintiffs’ decision to declare the AGM held on 9.3.2018 null and void.
    
19. According to Plaintiffs, they had granted one year for the new office bearers to continue upon a request made by a member of another religious body SSDPS.
    
20. However, by 2.7.2019 in light of the Defendants’ failure to provide audited financial reports and inability to hold AGM, the Trustees dissolved the Defendants’ positions. The Plaintiffs issued their ruling on 2 .7.2019.
    
21. Plaintiffs allege that an analysis of the ANZ Bank Statement showed discrepancies in the amount collected at festivities and those that were banked.
    
22. The Plaintiffs allege that the said mismanagement of funds has occurred in the following ways, being contrary to the Constitution:
    
    1. No deposits made into the account post Krishn Astami celebrations, held between 16 and 23 August 2019, for monies received as donations from devotees:
       
    2. Shortfalls in the amounts being deposited (variances between donation collected and deposited):
       
    100. Writing off Mandali Chanda, otherwise known as member contributions;
         
    4. Paying a wage to a member for the opening and closing of the store room door when the Religious Organisation’s assets were hired out;
       
    5. Unauthorised payment of registration fees to the SSDPS Rewa Branch: and
       
    6. Payment of funds as death benefit to members’ family members.
       
23. According to the Plaintiffs the Defendants had managed to register the Organisation under SSDPS and paid registration fees for the years 2018 and 2019, contrary to the intention of the members and Constitution.
    
24. On 11.11.2019, the Defendants, in the company of three members of the SSDPS Rewa Branch, conducted a meeting of Vote of No Confidence against the Plaintiffs. Plaintiffs were allegedly removed from trusteeship in the said meeting.
    
25. Following this meeting of Vote of No Confidence, a Special General Meeting was convened and again members of SSDPS participated in this meeting.
    
26. Further, the Defendants obtained the keys to the tool room located within the vicinity of the temple. The tool room contains assets, including a welding plan, bought by the Religious Organisation. The Defendants have had possession of the keys to the tool room since 1 December 2019.
    
27. The Plaintiffs in their written submissions states that the Defendants breached the Constitution in the following ways:
    
    1. Despite reminder notices, the Defendants did not have a 2018/2019 AGM. This prevented the appointment, renewal and/or replacement of membership and the executive committee;
       
    2. Failure to present the 2018/2019 audited financial report;
       
    100. Mismanagement of funds in the ANZ Bank Account;
         
    4. Registration of the Religious Organisation under the SSDPS Rewa Branch without holding a meeting for the consensus of members and Trustees as per the Constitution;
       
    5. Failure to afford the Plaintiffs right to Vote pursuant to Clause 16.1 of the Constitution;
       
    6. Continuing to act in the name of the Religious Organisation despite having being removed as office bearers, following the Trustees ruling on 2 July 2019, in complete defiance of the power of the Trustees’ exercise pursuant to Clause 16.2 of the Constitution.
       
28. On 20.3.2019, the Plaintiffs wrote to the Third named Defendant, inter alia, the failure to hold an AGM, and audited accounts for the financial year 2018.
    
29. On 2.7.2019, the Trustees wrote to the First Named Defendant who held the position of President in 2018. In the letter, the Trustees informed the Defendant of their ruling to dissolve the Defendants as Office Bearers, pursuant to the expiry of their term, and the appointment of an interim Committee and handover all documentation related to the conduct an administration of the Religious Organisation.
    
30. The Interim Committee was appointed and sanctioned by the Trustees with the following responsibi1ities;
    
    1. To act on behalf of all the members;
    2. To receive and communicate in correspondence on behalf of the Trust;
    100. To retrieve all relevant secretariat and financial documents of the Trust: and
    4. Conduct an audit of the Trust until the following AGM.
       
31. On 12 .7. 2019, the Plaintiffs wrote to ANZ advising them of the status of the dissolved committee and ANZ Bank Account has now been closed as the ANZ Bank has exercised its discretion to close the Account due to a major conflict between the parties.
    

ANALYSIS

32. Plaintiffs were appointed as trustees in the AGM held in 2016. There is no dispute as to this appointment and or the validity of AGM, held in 2016.
    
33. They are the current registered trustees of the Organization.
    
34. There was an AGM held in 2018 and Plaintiffs disputed that but subsequently agreed to allow the office bearers to remain in office and this was a compromise according to Plaintiffs. This was allowed due to intervention of a member of SSDPS. This was the first instance where SSDPS involved in the dispute between the parties.
    
35. Plaintiffs from their letter of 20.3.2019 requested to hold AGM before 31.3.2019 and also requested audited accounts. Said letter also warned that failure to do so would result in the appointment of interim committee in the following month.
    
36. In the affidavit in opposition Defendants state that failure to provide audited accounts was the result of delay in AGM. Further Defendants state trustees did not provide audited statements of their account despite their requests and this attributed to delay in audited accounts being prepared by Defendants. Defendants dispute whether trustee could open a trust account in HFC.
    
37. These are disputed facts that needs to be established at hearing.
    
38. After written notice inter alia to hold AGM on 20.3.2019 and failure to comply with requests for AGM and audited accounts Plaintiffs on 2.7.2019 had removed office bearers and appointed interim committee. This was done in terms of Clause 16.2 of the Constitution, but there are disputed facts as to unanimity requirement contained in clause 16.3 of the Constitution, in regard to decision of trustees.
    
39. So the validity of said interim committee as well as removal cannot be decided on the evidence provided at this stage. Plaintiff’s deny that deceased trustee held a different view on this.
    
40. There was an AGM held on 1.12.2019. This AGM as well as authority to call for AGM is disputed. Defendants were appointed as office bearers.
    
41. Before AGM on 11.11.2019 all the Defendants along with some delegates from SSDPS held a meeting of vote of no confidence against Plaintiffs.
    
42. The validity of such meeting being called when they were allegedly removed and an interim committee appointed by Plaintiff is an issue for trial. Apart from that there are other issues such as application of constitutional provisions contained in Clause 15.2 of the Constitution.
    
43. There is no set procedure or reasons for dismissal of trustees in the Constitution.
    
44. Defendants are the office bearers of the organization appointed through an AGM held on 1.12.2019. Plaintiffs dispute the appointment of the office bearers and do not consider AGM held in 2018 and 2019 as valid.
    
45. Plaintiffs had also appointed an interim committee in terms of clause 16.2 of the constitution, with the task of conducting an AGM.
    
46. Plaintiffs dispute facts relating to communication of one trustee who had died. The deceased trustee had indicated his displeasure about the actions they had taken in terms of clause 16.2 of the Constitution. Clause 16.3 of the Constitution requires unanimity of the decision of trustees.
    
47. There are conflicting evidence in the affidavits in relating to consent of deceased trustee.
    
48. There are serious questions of law to be decided at the hearing. As both parties do not consider others validity I cannot make an order to exclude other party from exercising their power derived from the Constituting of the Organization.
    
49. Plaintiff had sought five specific orders and three specific directions under letter (f). Balance of Convenience is the deciding factor in this proceeding. Plaintiffs had given a usual undertaking as to the damages and considering the nature of the orders I cannot see undertaking as to the damages being insufficient and or deciding factor.
    

Orders sought by Plaintiff

50. Order (a) contained in the inter partes summons sought restring of the Defendants from carrying out business and administration of the Organization. This would virtually halt operations of the Organization. One cannot decide from the driving seat that appointment of office bearers were illegal. This is the final relief in this matter if Plaintiffs are successful. That is a matter for the Plaintiff to prove at trial. Till then Organization should function and at the same time its character should not be disturbed in any manner.
    
51. The purpose of granting a discretionary remedy such as interim injunction is to eliminate any irreparable loss to Plaintiffs, till conclusion of the hearing. In this instance Plaintiffs have decided that there was mismanagement of the Organization. These are facts that need to be proved at hearing. If the orders sought in (a) are granted their effect would amount to removal of Defendants from their positions, though orders did not sought such removal.
    
52. The effect of said order (a) would be the same. Hence it is too broad and needs to be restricted. Plaintiffs’ apprehension is regarding financial mismanagement, hence that can be achieved with restricted orders directing to payments by Defendant. I considered bank statement and type of payments made. Most of the payments were below $500. In the bank statement marked 8 to the affidavit in support there were only four withdrawals above $500 for a period more than one year. So any financial payment above $500 needs to be approved by trustees in the interim. Approval needs to be made in writing and if there is rejection it needs to be stated with reasons for doing so. If no agreement can be achieved Defendants are at liberty to make an application to court for such approval.
    
53. The issuance of notices in the name of Organization is part and parcel of the function of the office bearers till they are proved illegally appointed so such entrainment cannot be granted in this matter as interim relief. Balance of convenience lied with the Defendants in relation to this.
    
54. Plaintiffs also seeking an order to restrain Defendants from opening bank accounts in the name of Organization. Balance of convenience lies with Defendants in this regard. Though Plaintiffs dispute their appointment they should conduct religious activities of the Organization. They needs to collect funds and without a bank account it will hinder financial affairs and will lead to mismanagement of the funds. So I decline to grant such restraining orders as to opening of bank accounts in the name of Organization to deposit and withdraw money for the purposes of the Organization. Only restrainment is regarding the payments above $500 from such funds belonging to Organization. All payments above $500 needs written sanction of trustees.
    
55. Order (b) sought in the inter partes summons to restrain Defendants from registration or engaging the Organization with other religious body particularly SSDPS unless approved by the trustees. At the hearing I requested counsel for Plaintiff to point out any clause in the constitution which required trustee’s approval for such decision. Counsel could not point out such provision hence, such approval of trustees cannot be granted as an interim order.
    
56. The Organization was an independent religious body and it had existed few decades in the same manner. The first instance where another religious body interference was when Plaintiffs did not accept AGM held in 2018 and office bearers, but Plaintiffs state that they had allowed the office bearers to continue through intervention of a member from SSDPS. The involvement of SSDPS was more, and this had not helped to solve the dispute between Plaintiffs and Defendants.
    
57. Defendants state that a decision was taken by members in 2017 AGM held in 2018 to obtain membership of SSDPS, but there were no evidence of such a request. Members of SSDPS had participated in matters relating to the Organization and it is not clear how they were accommodated in the Constitution of the Organization. I was not pointed out how members of another religious body participate in the affairs of the Organization under the Constitution. Clause 4 of the Constitution which defines the members of the Organization, does not allow such intervention of “delegates” from SSDPS, or any other body.
    
58. Defendants state that the Organization had obtained membership of SSDPS, but balance of convenience favours resolvment of internal disputes before joining another body including SSDPS. So restraining order is granted to remain the Organization independent from all other bodies including SSDPS. It had remained so till dispute arose between trustees and office bearers hence that status should prevail till resolvment of the dispute or order of the court. If the Organization had already obtained membership of SSDPS it needs to be suspended. There is an issue as to legality of such action.. Balance of convenience is with the Plaintiffs for such an order. It is important to have the Organization’s structure and membership in the same manner till reslovment of the dispute that had arisen before involvement of SSDPS.
    
59. As stated earlier I decline to grant any order in terms of order ‘(c)’ and or ‘(d)’ of inter partes summons. These are orders that can be made at the conclusion of hearing if the appointment of the Defendants are found unlawfull and no force of law. Balance of convenience lies with the Defendants in not granting these orders as interim measure.
    
60. Plaintiffs seeking an order to restrain Defendants from threatening them and this can be granted.
    
61. Plaintiff in the order ‘(f)’ seeking certain directions again (i), and (iii) of the directions cannot be granted as they are directions that can be granted at the conclusion of hearing when I decide the validity of the actions taken by both parties. So balance of convenience lies with not granting such directions as an interim measure. As an interim measure directions are made to produce audited accounts for the financial year of 2019 ended on 31.21.2019. More than two months had lapsed and there is an allegation of mismanagement. So Defendants are directed to produce audited accounts for financial year ended 31.12.2019 within one month from today.

CONCLUSION

62. There are serious question to be tried at hearing as to the removal of trustees and also validity of the appointment of office bearers of religious body and also membership of organization in SSDPS. There are disputed facts as to all the trustees taking unanimous decision in terms of clause 16.3 of the constitution. Plaintiffs dispute alleged letter from deceased trustee. Plaintiffs had acted on the basis that there is mismanagement in terms of clause 16.2 of the constitution. Mismanagement needs to be ascertain at the hearing. Plaintiffs had removed office bearers and appointed interim committee in terms of said clause 16.2 of the constitution. Validity of the said removal and appointment of interim committee and interpretation of relevant provisions in the Constitution, are serious questions to be tried. One cannot be in driving seat, and provide interim relief on the assumption that removal of office bearers and appointment of interim committee are lawful, thus status of the parties should remain till end of this action or an order contrary to that. By the same token it should be borne in mind that Defendants had initiated a ‘vote of no confidence’ against trustees. There was no procedure as to removal of trustees in the constitution. Clause 15.2 of the Constitution stated that trusteed would hold the position till they die or dismissed from it. There is no provision in the constitution as to what conduct would amount to dismissal and how it should be done. So the alleged vote of no confidence and process taken to remove the Plaintiffs as the trustees and validity of that needs to be established at hearing. When there is already dispute as to appointment of office bearers by trustees, could they remove trustees? These are some of the questions that needs to be decided at hearing. Hence, Plaintiffs cannot be considered as removed from their position and they should remain as trustees of the Organization till the end of this action. The Organization structure should also not be affected through any affiliations and or membership of other organizations. When the dispute between Plaintiffs and Defendants started there was no move to take membership of the Organization in another body. The Organization had remained an independent for decades and it should also remain till further order from the court. Outside interference had only aggravated the situation than resolving the dispute between parties and balance of convenience favours the Organization to remain independent till internal disputes are resolved and or further order of the court. If they had already joined that should also remain suspended till further order of the court, or conclusion of this action. Defendants are restrained from taking steps on the basis that they are affiliated to any other body including not limited to SSDPS.

FINAL ORDERS

1. Defendants are restrained from making payments on behalf of the Aashirvaad Ramayan Mandali (in any bank account maintained or otherwise) above $500 without the approval of trustees. If trustees refuses approval they are to give reasons for that in writing.
   
2. If trustees unreasonably refuses to approve the same an application can be made to court with full particulars of the proposed payment and reasons given by trustees for refusal of their approval.
   
3. Aashirvaad Ramayan Mandali to remain as an independent religious body without joining with any other organization including and not limited to SSDPS (Sri Sanatan Dharam Pratinidhi Sabhba) till further order of the court, or conclusion of this action.
   
4. Defendants are restrained from taking any further action to remove Plaintiffs as trustees of Aashirvaad Naag Temple and more specifically restrained from registering new trustees on behalf of Plaintiffs. Plaintiffs remain trustees of Aashirvaad Naag Temple until further order of this court, or conclusion of this action.
   
5. Defendants and their servants, agents, contractors, representatives or persons under the control, direction or guidance of Defendants, are restrained from threatening to Plaintiff in whatever form or manner.
   
6. Defendants are directed to provide audit for financial year ended 31.12.2019 within one month from today.
   
7. Each party to bear their own costs.
   
8. Plaintiff to file and serve statement of claim within 7 days.
   

Dated at Suva this 10^th day of March, 2020.

.....................................

Justice Deepthi Amaratunga

High Court, Suva