Full Text
HIGH COURT OF DELHI
Date of Decision: 10th JULY, 2023 IN THE MATTER OF:
SIDDHARTH SAHIB SINGH ..... Petitioner
Through: Mr. Sachin Puri, Sr. Advocate, Mr. Rahul Mehra, Sr. Advocate with Mr. Vishnu Langawat, Mr. Vishal Bhatnagar, Mr. Praveen Kumar
Sharma, Mr. Chaitanya Gusain and Mr. Anand Thumbayil, Advocates.
Through: Mr. Rajeev Nayyar, Sr. Advocate;
Mr. Sandeep Sethi, Sr. Advocate; Mr. Mohit Mathur, Sr. Advocate; Mr. Rajshekhar Rao, Sr. Advocate; Ms. Aishwarya Bhati, ASG; Mr. Shyam Sharma, Mr. Manik Dogra, Mr. T.
Singhdev, Ms. Ramanpreet Kaur, Mr. Rohit Bhagat, Ms. Ameya V. Thanvi, Mr. Abhijit Chakrabarty, Mr. Aabhas Sukhramani, Mr. Tanishq Srivastava, Ms. Anum Hussain, Mr. Vikram Singh, Ms. Shreya Sethi, Ms. Tanvi Tewari and Mr. Bhanu Gulati, Mr. Saurabh Chadda, Advocates.
JUDGMENT
1. Petitioner herein, who is the Secretary of the Delhi and District Cricket Association (hereinafter referred to as „the DDCA‟) has approached this Court by filing the present Writ Petition under Article 226 of the Constitution of India challenging the notice dated 10.06.2023, issued by the Apex Council of DDCA, for convening the Extra-Ordinary General Meeting (hereinafter referred to as „the EGM‟) of the Members of the DDCA on 05.07.2023 at 09:00 AM at the registered office of the DDCA at the Arun Jaitley Stadium, Ferozshah Kotla Ground, New Delhi.
2. Shorn of unnecessary details, the facts, leading to the present Writ Petition are as under: a. DDCA is a company incorporated under Section 8 of the Companies Act, 1956 (hereinafter referred to as „the Companies Act‟). It is the governing body for cricket activities in the State of Delhi and the Delhi Cricket Team. The Apex Council of the DDCA is the principal body of the DDCA tasked with the governance of the affairs of DDCA. b. It is stated that a Notice dated 10.06.2023 was issued by the Apex Council of the DDCA for convening the EGM of the Members of the DDCA on 05.07.2023 at 09:00 AM at the registered office of the DDCA for ratifying its resolution dated 10.04.2023 by which the Apex Council had appointed Justice M M Kumar (Retd.), Former Chief Justice of High Court of Jammu & Kashmir as the Ombudsman cum Ethics Officer of the DDCA. At this juncture it is pertinent to mention that. Justice Indu Malhotra (Retd.), Former Judge of the Supreme Court of India had been appointed as the Ombudsman cum Ethics Officer of the DDCA. Material on record indicates that Justice Indu Malhotra (Retd.) resigned from the post of Ombudsman cum Ethics Officer of the DDCA on 31.03.2023 pursuant to which Justice M M Kumar (Retd.) was appointed as the Ombudsman cum Ethics Officer of the DDCA by the Apex Council vide its Resolution dated 10.04.2023. c. Petitioner herein is the Secretary of the Apex Council of the DDCA. It is stated that the Resolution dated 10.04.2023, appointing Justice M M Kumar (Retd.), Former Chief Justice of High Court of Jammu & Kashmir as the Ombudsman cum Ethics Officer of the DDCA had been passed clandestinely and is, therefore, invalid and the notice calling for a meeting for ratification of the said Resolution should be quashed and set aside.
3. Mr. Rahul Mehra, learned Senior Counsel appearing for the Petitioner, has taken this Court through various provisions of the Articles of Association of the DDCA to contend that the notice dated 10.06.2023 calling for an EGM of the Members of the DDCA on 05.07.2023 at 09:00 AM at the registered office of the DDCA for ratifying its resolution dated 10.04.2023 by which the Apex Council had appointed Justice M M Kumar (Retd.), Former Chief Justice of High Court of Jammu & Kashmir as the Ombudsman cum Ethics Officer of the DDCA is completely contrary to the procedure laid down in the Articles of Association of the DDCA. He contends that Article 1(f) of the Articles of Association (hereinafter referred to as „AoA‟) defines the Apex Council as the principal body of the DDCA tasked with the governance of the DDCA as set out in Article 17 of the AoA. He then takes this Court through Article 10 of the AoA which lays down the rules regarding conduct of the Annual General Meeting of the General Body of the Apex Council. Article 10(1) of the AoA stipulates that the Annual General Meeting of the General Body shall be held every year, not later than 30th September, at such place and time as the President may fix. Mr. Mehra then draws the attention of this Court to Article 10(5) of the AoA which stipulates the businesses that have to be transacted only at the Annual General Meeting of the General Body of the DDCA. He states that Article 10(5)(f) of the AoA provides that the Ombudsman cum Ethics Officer of the DDCA can be appointed only at the Annual General Meeting of the General Body of the Apex Council which is held annually. He then takes this Court to Article 17(2) of the AoA which deals with the composition of the Apex Council of the DDCA. He states that Article 17(2) of the AoA stipulates that the Apex Council shall consist of a total of 18 Directors including the Secretary of the DDCA. Mr. Mehra then takes this Court to Article 18(9) of the AoA to contend that only a Resolution passed by circulation to all members of the Apex Council is valid and effective, furthermore, only a Resolution by circulation to all members of the Apex Council can be ratified at the next meeting of the Apex Council. Mr. Mehra then draws the attention of this Court to Article 18(2) of the Articles of Association to contend that the Apex Council has all the powers of the General Body and has the authority and discretion to do all acts and things except such acts which are expressly directed to be done by the General Body. Exercise of such powers, authorities and discretion shall be subject to the control and regulation of the General Body. In short the contention of Mr. Mehra is that the Resolution which is alleged to have been passed on 10.04.2023 by which Justice M M Kumar (Retd.), Former Chief Justice of High Court of Jammu & Kashmir has been appointed as the Ombudsman cum Ethics Officer of the DDCA is not valid since the Petitioner herein, who is the Secretary of the Apex Council, has not signed the resolution. He further contends that Article 10(5)(f) of the AoA specifically provides that the appointment of Ombudsman cum Ethics Officer of the DDCA can be done only at the Annual General Meeting of the General Body of the Apex Council which is held annually and in view of the fact that Article 18(2) of the Articles of Association bars the Apex Council to do such acts which are expressly directed to be done by the General Body, the Apex Council ought not to have appointed Justice M M Kumar (Retd.), Former Chief Justice of High Court of Jammu & Kashmir as the Ombudsman cum Ethics Officer of the DDCA in a clandestine manner and the same cannot be ratified by the EGM which is to be held on 05.07.203. He, therefore, states that the Resolution dated 10.04.2023 is invalid and, therefore, the notice dated 10.06.2023, calling for an EGM of the Members of the DDCA for ratifying its resolution dated 10.04.2023 appointing Justice M M Kumar (Retd.), former Chief Justice of High Court of Jammu & Kashmir as the Ombudsman cum Ethics Officer of the DDCA is invalid in law and this Court should exercise its power under Article 226 of the Constitution of India to strike it down.
4. Mr. Rajiv Nayyar, learned Senior Counsel appearing for Respondent, raises a preliminary objection on the maintainability of the present Writ Petition. He states that the DDCA is a company incorporated under Section 8 of the Companies Act, 2013 and, therefore, the remedy for the Petitioner is to move an appropriate application before the National Company Law Tribunal (hereinafter referred to as „the NCLT‟) for redressal of his grievances. Mr. Nayyar has taken this Court to Section 242(2)(a) of the Companies Act to state that the NCLT has the power to regulate the conduct of affairs of the company. He, thereafter, took this Court to Section 242(4) of the Companies Act to contend that the NCLT has the power to make any interim order which it thinks fit for regulating the conduct of the company‟s affairs upon such terms and conditions as the NCLT feels to be just and equitable. Mr. Nayyar also takes this Court through Section 245(1) of the Companies Act to contend that the NCLT can pass orders restraining a company from committing breach of any provision of the company‟s memorandum or articles as well as to restrain the company and its directors from acting on such resolution which it thinks are prejudicial to the interests of the company or its members. He further submits that Section 241 of the Companies Act specifically grants power to the NCLT to appoint persons who can conduct the affairs of the company and pass orders to restrain the company from committing breach of any of the company‟s memorandum or articles. Mr. Nayyar, therefore, contends that in the presence of an equally efficacious alternative remedy to the Petitioner to approach NCLT, this Court must desist from exercising its jurisdiction under Article 226 of the Constitution of India.
5. Mr. Nayyar has also taken this Court through an Order dated 28.02.2020, passed by this Court in W.P.(C) No.1878/2020, titled as Rajinderr Kumar v. UOI & Anr. in which the Petitioner therein had approached this Court challenging the Annual Report and Statement of Accounts of the company therein. On being confronted with the availability of an equally efficacious alternative remedy of approaching the NCLT, the Petitioner therein had chosen to withdraw the said Writ Petition with liberty to approach the NCLT. Mr. Nayyar has also drawn the attention of this Court to a judgment passed by this Court in Delhi & District Cricket Association v. Sudhir Kumar Aggarwal and Others, 2020 SCC OnLine Del 1223, wherein this Court has held that the NCLT has powers to deal with the issues regarding violation of the AoA by a company.
6. In rejoinder, Mr. Sachin Puri, learned Senior Counsel appearing for the Petitioner, draws the attention of this Court to Section 244 of the Companies Act to contend that the Petitioner in his own capacity could not have approached the NCLT by filing an application under Section 241 of the Companies Act as Section 244 of the Companies Act provides that an application under Section 241 of the Companies Act can only be filed if such an application is supported by at least 20% of the total number of members of the company and, therefore, the Petitioner had no other remedy for redressal of his grievance. Mr. Puri further contends that against the judgment of this Court in Delhi & District Cricket Association v. Sudhir Kumar Aggarwal and Others (supra) an SLP being, SLP (C) No.9285/2020, has been filed before the Apex Court and the Apex Court has disposed of the said SLP and had left the issue of maintainability open.
7. This Court on 04.07.2023 heard the case only on the issue of maintainability of the Writ Petition and not on the merits of the case.
8. It is well settled that the jurisdiction of a High Court under Article 226 of the Constitution of India is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles but the exercise of the jurisdiction is discretionary and it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations and the resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute.
9. In Thansingh Nathmal v. Supdt. of Taxes, (1964) 6 SCR 654, the Apex Court has observed as under: “7...... Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy..............Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.”
10. In CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603, the Apex Court has observed as under:
14. In Mafatlal Industries Ltd. v. Union of India [(1997) 5 SCC 536] B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) „77. … So far as the jurisdiction of the High Court under Article 226—or for that matter, the jurisdiction of this Court under Article 32—is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.‟” (See G. Veerappa Pillai v. Raman & Raman Ltd. [(1952) 1 SCC 334: AIR 1952 SC 192], CCE v. Dunlop India Ltd. [(1985) 1 SCC 260: 1985 SCC (Tax) 75], Ramendra Kishore Biswas v. State of Tripura [(1999) 1 SCC 472: 1999 SCC (L&S) 295], Shivgonda Anna Patil v. State of Maharashtra [(1999) 3 SCC 5], C.A. Abraham v. ITO [AIR 1961 SC 609: (1961) 2 SCR 765], Titaghur Paper Mills Co. Ltd. v. State of Orissa [Titaghur Paper Mills Co. Ltd. v. State of Orissa,
Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons [1992 Supp (2) SCC 312], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1], Tin Plate Co. of India Ltd. v. State of Bihar [(1998) 8 SCC 272], Sheela Devi v. Jaspal Singh [(1999) 1 SCC 209] and Punjab National Bank v. O.C. Krishnan [(2001) 6 SCC 569].)
14. In Union of India v. Guwahati Carbon Ltd. [(2012) 11 SCC 651] this Court has reiterated the aforesaid principle and observed: (SCC p. 653, para 8)
”
11. In Maharashtra State Board of Wakfs v. Shaikh Yusuf Bhai Chawla and Others, 2022 SCC OnLine SC 1653, the Apex Court has held as under:
12. The Apex Court in its latest judgment in South Indian Bank Ltd. and Others v. Naveen Mathew Philip and Another, 2023 SCC OnLine SC 435, has observed as under:
26. Following the dictum of this Court in Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1], in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107], this Court noted that: (Harbanslal Sahnia case, SCC p. 110, para 7)
27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”” (emphasis supplied)
13. It is well settled that availability of alternative remedy does not operate as an absolute bar to the maintainability of the writ petition and that the rule which requires a party to pursue the alternative remedy provided by the statute is a rule of policy for convenience and discretion rather than a rule of law. Undoubtedly, entertainability and maintainability of the writ petition are two distinct concepts. If the objection to maintainability is sustained then the Courts are rendered incapable of receiving the lis for adjudication. However, on the other hand, the question of entertainability is entirely within the discretion of the High Courts and writ remedy is a discretionary remedy. A writ petition, despite being maintainable may not be entertained by High Courts for many reasons or relief could be refused to the Petitioner despite setting up a sound legal point. Wherein alternate remedies are available, the writ courts should not normally entertain a writ petition if the Petitioner has not availed the alternative remedy without examining whether an exceptional case has been made out for such entertainment. [Refer to: Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum- Assessing Authority & Ors., 2023 SCC OnLine SC 95 ]
14. Keeping the above principles in mind, this Court proceeds to examine whether on the facts as presented before this Court, this Court should entertain the writ petition in light of the availability of an alternative remedy and whether the case set up by the Petitioner falls within the exceptions as enumerated by the Apex Court in its various judgments. The Petitioner has approached this Court praying for quashing of notice dated 10.06.2023, issued by the DDCA for convening the EGM of the Members of the DDCA on 05.07.2023 at 09:00 AM at the registered office of the DDCA at the Arun Jaitley Stadium, Ferozshah Kotla Ground, New Delhi for ratifying its resolution dated 10.04.2023 by which the Apex Council had appointed Justice M M Kumar (Retd.), Former Chief Justice of High Court of Jammu & Kashmir as the Ombudsman cum Ethics Officer of the DDCA on the ground that the said EGM is contrary to the procedures laid down in the AoA.
15. Chapter 16 of the Companies Act deals with prevention of oppression and mismanagement. Section 241 of the Companies Act provides that any member of a company who complaints that the affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or to any other member or members or in a manner prejudicial to the interests of the company may approach the NCLT. Section 241 of the Companies Act reads as under:
16. Section 242 of the Companies Act provides that if NCLT is of the opinion that the company‟s affairs have been or are being conducted in a manner prejudicial or oppressive to any member or members or prejudicial to public interest or in a manner prejudicial to the interests of the company then the NCLT can pass orders for regulating the conduct of the affairs of the company. Section 242 (4) of the Companies Act gives power to the NCLT to make any interim order which it thinks fit for regulating the conduct of the company‟s affairs upon such terms and conditions as the NCLT deems to be just and equitable. Section 242 reads as under: “Section 242. Powers of Tribunal (1) If, on any application made under section 241, the Tribunal is of the opinion— (a) that the company's affairs have been or are being conducted in a manner prejudicial or oppressive to any member or members or prejudicial to public interest or in a manner prejudicial to the interests of the company; and (b) that to wind up the company would unfairly prejudice such member or members, but that otherwise the facts would justify the making of a winding-up order on the ground that it was just and equitable that the company should be wound up, the Tribunal may, with a view to bringing to an end the matters complained of, make such order as it thinks fit. (2) Without prejudice to the generality of the powers under sub-section (1), an order under that subsection may provide for— (a) the regulation of conduct of affairs of the company in future; (b) the purchase of shares or interests of any members of the company by other members thereof or by the company;
(c) in the case of a purchase of its shares by the company as aforesaid, the consequent reduction of its share capital;
(d) restrictions on the transfer or allotment of the shares of the company;
(e) the termination, setting aside or modification, of any agreement, howsoever arrived at, between the company and the managing director, any other director or manager, upon such terms and conditions as may, in the opinion of the Tribunal, be just and equitable in the circumstances of the case; (f) the termination, setting aside or modification of any agreement between the company and any person other than those referred to in clause (e): Provided that no such agreement shall be terminated, set aside or modified except after due notice and after obtaining the consent of the party concerned; (g) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the company within three months before the date of the application under this section, which would, if made or done by or against an individual, be deemed in his insolvency to be a fraudulent preference; (h) removal of the managing director, manager or any of the directors of the company;
(i) recovery of undue gains made by any managing director, manager or director during the period of his appointment as such and the manner of utilisation of the recovery including transfer to Investor Education and Protection Fund or repayment to identifiable victims; (j) the manner in which the managing director or manager of the company may be appointed subsequent to an order removing the existing managing director or manager of the company made under clause (h); (k) appointment of such number of persons as directors, who may be required by the Tribunal to report to the Tribunal on such matters as the Tribunal may direct;
(l) imposition of costs as may be deemed fit by the
(m) any other matter for which, in the opinion of the Tribunal, it is just and equitable that provision should be made. (3) A certified copy of the order of the Tribunal under sub-section (1) shall be filed by the company with the Tribunal. (4) The Tribunal may, on the application of any party to the proceeding, make any interim order which it thinks fit for regulating the conduct of the company's affairs upon such terms and conditions as appear to it to be just and equitable. (5) Where an order of the Tribunal under sub-section (1) makes any alteration in the memorandum or articles of a company, then, notwithstanding any other provision of this Act, the company shall not have power, except to the extent, if any, permitted in the order, to make, without the leave of the Tribunal, any alteration whatsoever which is inconsistent with the order, either in the memorandum or in the articles. (6) Subject to the provisions of sub-section (1), the alterations made by the order in the memorandum or articles of a company shall, in all respects, have the same effect as if they had been duly made by the company in accordance with the provisions of this Act and the said provisions shall apply accordingly to the memorandum or articles so altered. (7) A certified copy of every order altering, or giving leave to alter, a company's memorandum or articles, shall within thirty days after the making thereof, be filed by the company with the Registrar who shall register the same. (8) If a company contravenes the provisions of subsection (5), the company shall be punishable with fine which shall not be less than one lakh rupees but which may extend to twenty-five lakh rupees and every officer of the company who is in default shall be punishable with fine which shall not be less than twenty-five thousand rupees but which may extend to one lakh rupees, or with both.” (emphasis supplied)
17. Section 244 of the Companies Act which stipulates the rights of a member of the company to file an application under Section 241 of the Companies Act reads as under: “Section 244. Right to apply under section 241. (1) The following members of a company shall have the right to apply under section 241, namely:-- (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than onetenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares; (b) in the case of a company not having a share capital, not less than one-fifth of the total number of its members: Provided that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241. Explanation.--For the purposes of this sub-section, where any share or shares are held by two or more persons jointly, they shall be counted only as one member. (2) Where any members of a company are entitled to make an application under subsection (1), any one or more of them having obtained the consent in writing of the rest, may make the application on behalf and for the benefit of all of them.” (emphasis supplied)
18. Section 245 of the Companies Act gives the power to the NCLT to restrain a company from committing an act which is ultra vires the articles or memorandum of the company. It also restrains the company from committing breach of any provision of the company‟s memorandum or articles and to declare a resolution altering the memorandum or articles of the company as void if the resolution was passed by suppression of material facts or obtained by misrepresentation to the members or depositors and also restrain its directors from acting on such resolution. Relevant portions of Section 245 of the Companies Act reads as under: “Section 245. Class action (1) Such number of member or members, depositor or depositors or any class of them, as the case may be, as are indicated in sub-section (2) may, if they are of the opinion that the management or conduct of the affairs of the company are being conducted in a manner prejudicial to the interests of the company or its members or depositors, file an application before the Tribunal on behalf of the members or depositors for seeking all or any of the following orders, namely:-- (a) to restrain the company from committing an act which is ultra vires the articles or memorandum of the company; (b) to restrain the company from committing breach of any provision of the companys memorandum or articles;
(c) to declare a resolution altering the memorandum or articles of the company as void if the resolution was passed by suppression of material facts or obtained by mis-statement to the members or depositors;
(d) to restrain the company and its directors from acting on such resolution;......”
19. A perusal of the abovementioned Sections shows that NCLT has the power to redress the grievances of the Petitioner and the prayers sought in the present Writ Petition before this Court, especially the prayer for quashing the notice dated 10.06.2023 calling for an EGM of the Members of the DDCA on 05.07.2023 at 09:00 AM at the registered office of the DDCA for ratifying its resolution dated 10.04.2023.
20. Though Section 244(1)(b) of the Companies Act provides that an application under Section 241 of the Companies Act can be entertained only if it is supported by one-fifth of the total number of members of the company but the NCLT has power to waive of this requirement. The Petitioner, therefore, ought to have approached the NCLT and if the NCLT would have refused to waive off the stipulated requirement of support of one-fifth members of the company then it was always open for the Petitioner to approach this Court by contending that no equally efficacious alternative remedy is left to him. It cannot be said that if this Court does not exercise its jurisdiction under Article 226 of the Constitution of India an irreversible damage would be caused to the DDCA and the same cannot be rectified by the Courts or that the DDCA will be subjected to an irreparable loss which needs urgent restraint orders.
21. Article 41 of the AoA of DDCA deals with Ombudsman and the same reads as under: “41.
THE OMBUDSMAN
1. The Company shall appoint an Ombudsman at the Annual General Meeting for the purpose of providing an independent dispute resolution mechanism. The Ombudsman shall be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court so appointed by the Company after obtaining his/her consent and on such terms as determined by the Company in keeping with the dignity and stature of the office. The term of the Ombudsman shall be one year, subject to a maximum of 3 terms in office.
2. If found expedient, the Ombudsman may also act as the Ethics Officer.
3. The Apex council shall, in consultation with the CEO frame Regulations regarding the discipline and conduct of the Players, Match Officials, Team Officials, Administrators, Committee Members and others associated with the DDCA. The same shall come into force, once approved by the General Body of the Company.”
22. If the appointment of Ombudsman is contrary to the laws laid down in the AoA, it is always open for the NCLT to stay the effect of the resolution dated 10.04.2023 and reverse any order passed by the Ombudsman or any action taken by him/her if it is not in the interest of the DDCA. The Petitioner has not made out a case that it is imperative for this Court to entertain the present Writ Petition even though an equally efficacious alternative remedy/forum is available to the Petitioner and that the Ombudsman can pass such orders which are irreversible in nature and cannot be rectified if they are found to be faulty. This Court can take judicial notice of the fact that the NCLT is situated in Delhi and it was always open for the Petitioner to approach the NCLT which is the forum under the Companies Act to address the grievances which are raised by the Petitioner in the present Writ Petition. The present case also does not fall within the exceptions that have been laid down by the Apex Court in South Indian Bank Ltd. (supra) which would compel this Court to entertain the present Writ Petition even in the presence of an equally efficacious alternative remedy to the Petitioner.
23. This Court is, therefore, not inclined to entertain the present Writ Petition at this stage and grants liberty to the Petitioner to approach the NCLT for the redressal of its grievances.
24. It is made clear that this Court has not made any observations on the merits of the case.
25. With these observations, the Writ Petition is disposed of. Pending applications, if any, also stand disposed of.
SUBRAMONIUM PRASAD, J JULY 10, 2023