The Delhi High Court allowed the petition against denial of Green Card to a class of members by Delhi Gymkhana club.
The present suit has been filed by 7 plaintiffs who are all members of defendant Club namely Delhi Gymkhana club in a representative capacity claiming that they are the permanent members of defendant which has 5553 permanent members, about 4925 person enjoy the facility of the defendant as Green Card holder and about 2305 persons and their spouses and children have been registered as UCP.
The plaintiffs claimed that the defendant Club which is a non-profit Company by Guarantee was incorporated in 1913 and as per Clause 4 of the Articles of Association, membership of the Club is classified in five categories, i.e., Permanent, Garrison, Temporary, Casual and Special Category.
The waiting list of permanent members has been sub-classified into two categories, Government and Non-Government which is in the ratio of 50:50. The total approved Permanent membership is 5600. Besides the membership, the facilities of the Club can be enjoyed by the spouse and dependent members wherein children of the member below the age of 21 years are considered as dependent members.
Children of the member up to the age of 13 years can utilize the facilities of the Club when accompanied by the parents and between 13 to 21 years, can utilize the facilities independently. Children of the member attaining the age of 21 years may continue to use the facilities of the defendant Club after applying for permanent membership in which case they are issued a Green Card despite the fact that no concept of Green Card is provided in the Articles of Association of the defendant nor does the same appear from the White Paper issued in October, 2014.
The Defendant extended the facility of issuing Green Card only to those children who enjoy the facilities of Club while being minors, however, the defendant denies the said Green Card to those children who did not enjoy the facilities of the Club as minors. According to the plaintiffs denying Green Card to a class of members is acting inequitably and the defendant seeks to interpret Article 13 (3) (b) only for the benefit of a section of permanent members.
Section 242 of the Companies Act which provides for the power of the Tribunal contemplates an action relating to the affairs of the company which is being conducted in a manner prejudicial or oppressive to any member or members and that to wind up the company would unfairly prejudice such member or members, but the facts justify the makings of a winding up order, the power of the NCLT can be invoked. However, in the present suit the plaintiffs do not claim winding up of the defendant Club which is a company by guarantee.
The single judge bench of Justice Mukta Gupta noted that the cause of action pleaded by the plaintiff in this suit is the manner in which Article 13(3)(b) of the Articles of Association of the defendant company is being interpreted thereby creating irrational and illegal classification. NCLT not being empowered to determine the said cause of action, this Court is of the opinion that the plea of the defendant that the present suit is not maintainable and only a petition before the NCLT is maintainable, is liable to be rejected. Thus, the issue was decided in favour of the plaintiffs and against the defendant.
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