Dato’ Vkk Teagarajan A/L Vk Kalyanasundram v Datuk K. Ketheeswaran, 23-06-2010

• Judge: DATO’ HAJI MOHD ZAWAWI BIN SALLEH
• Judgment Date: 23 June 2010
• Appellant: DATO’ VKK TEAGARAJAN A/L VK KALYANASUNDRAM,DR. SUPPIAH A/L VEERASAMY,SURESH GORASIA A/L JAYANTILAL GORASIA,KIRAN A/L DHIRAJLAL,DATO’ SHANMUGANATHAN A/L VELLANTHURAI
• Court: High Court (Malaysia)
• Record Number: R2(4)-22-05-10
• Respondent: DATUK K. KETHEESWARAN,PENDAFTAR PERTUBUHAN MALAYSIA

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

[BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS]

PERMOHONAN UNTUK SEMAKAN KEHAKIMAN NO. R2(4)-22-05-10

ANTARA

1. DATO’ VKK TEAGARAJAN A/L VK KALYANASUNDRAM

2. DR SUPPIAH A/L VEERASAMY

3. SURESH GORASIA A/L JAYANTILAL GORASIA

4. KIRAN A/L DHIRAJLAL

5. DATO’ SHANMUGANATHAN A/L VELLANTHURAI … PEMOHON-

PEMOHON

DAN

1. DATUK K. KETHEESWARAN … RESPONDEN-

2. PENDAFTAR PERTUBUHAN MALAYSIA … RESPONDEN

JUDGMENT

Mohd Zawawi Salleh, J:

The Reliefs Sought

[1] In the Writ and Statement of Claim dated 4 June 2010, the Plaintiffs essentially claim for declaratory and consequential relief relating inter alia, to the interpretation of the Constitution of the Malaysian Associated Indian Chambers of Commerce & Industry (“MAICCI”).

[2] In more detail, the Plaintiffs pray for the following orders:

1. In prayers (i), (ii) and (iii), the Plaintiffs pray for declaration that the Special Delegates Conference (“SDC”) convened on 15.1.2010 is valid and binding on the members of MAICCI and that the Plaintiffs be put in power of MAICCI;

2. In prayer (iv), (v), (vi) and (vii), Plaintiffs pray that the Annual Delegates Conference (“ADC”) of MAICCI dated 16.1.2010 is illegal, null and void and all decisions taken by MAICCI pursuant to the ADC on 16.1.2010 is consequently illegal, null and void; and

3. In prayers (ix) and (xii), the Plaintiffs pray that the Plaintiffs be given control of MAICCI’s bank accounts and office premises to the exclusion of the present office bearers.

[3] In enclosure (3), the Plaintiffs pray that:

1. in prayer (i), the First Respondent and/or any other party be restrained from taking any further steps to convene the ADC on 27.6.2010; and

2. in prayer (ii), the First Defendant and/or any other party be restrained from taking any steps in the name of MAICCI, including but not limited to, acts concerning expulsions or suspensions.

Factual Antecedents

[4] The factual antecedents relating to the Plaintiff’s claim are set out in paragraphs 5 to 54 of the Plaintiff’s First Affidavit (Enclosure (4)). The salient facts may be summarised as follows:

1. the Plaintiffs were unhappy with the decisions taken by MAICCI in its Press Release dated 23.1.2009 wherein MAICCI expressed its disagreement with HINDRAF when HINDRAF, inter alia, called for the Indian Government to impose trade sanctions against Malaysia;

2. On 11.2.2009, five (5) State members (Perak, Terengganu, Melaka, Labuan, Kedah and Sabah) requisitioned for a Special Delegates conference (“the SDC”) calling for:

1. the resignation of all the office bearers of MAICCI; and

2. an Interim committee to be set up at the Council Meeting on 13.2.2009 to manage MAICCI and to set the agenda for the SDC to decide on item (a) above.

3. On 13.2.2009, at the 4^th Management Council Meeting “MCM”), the following were recorded:

1. two (2) of the State members (Perak and Terengganu) did not confirm their requisitions for the matters stated in (b); and

2. the positions of the three (3) Council members that resigned on 3.2.2009 was addressed and three (3) others were appointed in their place.

4. On 23.9.2009, at the 5^th MCM were held confirming the position recorded at the 4^th MCM;

5. On 5.10.2009, the Plaintiffs’ went ahead and formed an Interim Committee so that they could call for the SDC. The Interim Committee was formed on the purported basis that the EXCO is defunct.

6. On 14.11.2009, at the 6^th MCM was called. This council meeting was attended by eight (8) out of twelve (12) State members. Sabah, Melaka, Labuan and Kedah were absent. At the 6^th MCM it was decided that:

1. the ADC be held on 16.1.2010; and

2. the Council will issue a show cause against the President of Sabah and in the event he fails to offer any reasonable explanation, then the Council will address the matter at the ADC on 16.1.2010.

7. On 15.1.2010, the Interim Committee called for an SDC, the Plaintiffs’ purportedly elected themselves into power primarily with the support of Labuan, Kedah, Sabah and Melaka;

8. On 16.1.2010, MAICCI called for a properly constituted ADC. This meeting was attended by eight (8) of twelve (12) State members. Sabah, Melaka, Labuan and Kedah were absent. At this ADC, Sabah was removed as an affiliate members.

9. On 7.4.2010, at the 11^th Management Council Meeting, the Plaintiffs were barred from attending future ADC’s Management Council Meeting or contest any positions in MAICCI until further notice. This decision was unanimous by all States and Council members because the Plaintiffs had acted against the interest of MAICCI.

10. On 31.5.2010, at the 12^th Management Council Meeting, the decision of the States and Council members with respect to the suspension was confirmed.

Submission of the First Respondent

[5] Learned counsel for the First Respondent submits that enclosure (3) should be dismissed for the following reasons:

1. the Plaintiffs have not cited the proper parties to the suit;

2. the Interim Committee established by the Plaintiffs on 5.10.2009 is ultra vires the MAICCI Constitution;

3. the SDC on 15.1.2010 is illegal and unlawful. Therefore, all resolutions passed and decisions taken at the SDC is illegal and unlawful;

4. the decision to bar the Plaintiffs until further notice was confirmed by MAICCI;

5. the present Council has been confirmed by the delegates and the Second Defendant;

6. the Second Defendant and the Constitution of MAICCI have called for the ADC to be held on or before 30.6.2010; and

7. the Plaintiffs are seeking final relief and have not satisfied the test for the injunction. Should this Court grant the injunction, the operations of MAICCI will be frozen and this will affect third parties rights.

Findings of the Court

[6] Learned counsel for the First Respondent submits that the Writ and Statement of Claim states the First Respondent is being sued in his personal capacity as the former President of MAICCI. The Writ and Statement of Claim also does not cite any other office bearer of MAICCI as a defendant.

[7] For the Plaintiffs, learned counsel submits that MAICCI is an association of individuals or persons and the suit arises out of grievances with the conduct of the First Respondent, the former President of MAICCI, relating to the management of MAICCI. Therefore, the First Respondent and by extension the MAICCI is amenable to an injunction. (See The Taff Vale Railway Co v The Amalgamated Society of Railway Servants [1901] AC 426 (HL); Lee Thye (as President and Office bearer of the Selangor Yan Keng Benevolent Dramatic Association) v Tan Sri Ngan Ching Wen (as President and office bearer of the Selangor Chinese Assembly Hall) [1999] 6 MLJ 390)

[8] Now, section 9(c) of Societies Act 1966 provides as follows:

“a society may sue or be sued in the name of such one of its members as declared to the Registrar and registered by him as the public officer of the society for that purpose, and if no such person is registered, it shall be competent for any person having a claim or demand against the society to sue the society in the name of any office bearer of the society”.

[9] The effect of section 9(c) of the Societies Act 1996 has been explained by the Federal Court in the case of Lee Tak Suan & Anor v Tunku Dato Seri Shahabudin & Ors [2009] 4 CLJ 365 as follows:

“13. As to the right to sue and liability to be used, according to section 9(c) of the Act a society may sue or be sued in the name of the member who is its registered public officer or, if there is no registered public officer, in the name of an officer-bearer of the society. The person in whose name the society sues or is sued is stated in section 9(e)(ii) as suing or being sued “on behalf of the society”. This means that although the suit is not in the society’s name, it is still a suit by or against the society, but through its agent. This is further borne out by the fact that section 9(e)(i) and (ii) emphasizes that where a suit against a registered society succeeds, the judgment is enforced not against the person or property of the person in whose name the society is sued but “against the property of the society”, which fact in turn signifies that a society is recognized as a property-owning entity, as is also the fact that where a registered society sues a member and loses, according to the proviso to section 9(f) the successful member may recover his costs either from the person in whose name the society sues or from the society itself, in which case the successful member may have execution “against the property of the society”.

[10] The Court would agree with the submission of learned counsel for the First Defendant that the relief sought by the Plaintiffs can only be granted against MAICCI. Therefore, an officer bearer of MAICCI (recognized in the ADC of 16.1.2010) must be cited as a defendant with the appropriate endorsement concerning his capacity. The Plaintiffs have failed to name the appropriate defendants in this suit. Order 3(1)(b) of the Rules of the High Court 1980 provides:

“3(1) Before a writ is issued it must be indorsed –

….

(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which...