Badar Durrez Ahmed, J.

These applications under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC) were heard together and are being disposed of by this common judgment. In IA No. 9339/2005, the defendant No. 1 has sought the rejection of the plaint on the plea that the suit appears from the statements in the plaint to be barred by law inasmuch as it is alleged that the condition precedent of taking leave of the Court under Section 92, CPC has not been fulfilled. The plaint is also sought to be rejected on the ground of limitation and acquiescence. In IA No. 9359/2005, the defendant No. 2 has sought the rejection of the plaint on the ground that it does not disclose a cause of action. The plea of limitation has also been taken.

2. Dr. Singhvi, appearing on behalf of the defendant No. 1/applicant, drew the attention of the Court to the various averments made in the amended plaint. In paragraph 7, it has been mentioned that in the year 1981, the Escorts Heart Institute and Research Centre, Delhi (EHIRC-Delhi) was registered as a charitable society under the Societies Registration Act, 1860 with the objective of running a world class specialist heart institution for the general public and to carry on research and development in the field of medicine. It is further stated that the aims and objects of EHIRC-Delhi clearly and categorically provided that the society would be a charitable one and was not started with a view to earn profits and Clause 23 of the Rules and Regulations clearly provided that no part of the societies funds, or the income thereof shall inure to the benefit of any governor, officer or member of the society. It was also stated in the said paragraph that the moving light behind the formation of this society was late Shri H.P. Nanda, father of the plaintiff No. 1 and defendant No. 4, who had conceived the idea of setting up a charitable institute of world fame, to help the weaker sections of society and to create a medical infrastructure for the citizens of India.

3. In paragraph 1 of the plaint, it has been stated that the plaintiff No. 1 (Mr. Anil Nanda) is a former member of the governing body of EHIRC-Delhi and that he was representing the plaintiff No. 2 on the governing board of EHIRC-Delhi. The plaintiff No. 2 has been described in paragraph 2 of the plaint as a company registered under the Companies Act, 1913 and as a substantial donor towards the creation of the corpus of EHIRC-Delhi having contributed about Rs. 1.5 crores approximately and, therefore, the plaintiff No. 2 was vitally interested in the present proceedings.

4. In paragraph 9 of the plaint, it has been stated that the heart institute that had been set up on the land provided by the Government on concessional rates, was also granted several exemptions/concessions under the Income Tax Act, 1961 being a charitable institute as also concessional rates of customs and excise duties in respect of import of medical and other equipments. In paragraph 11 of the plaint, it is alleged that soon after the death of late Shri H.P. Nanda in April, 1999, some of the members of the governing body of EHIRC-Delhi, headed by the defendant No. 4 (Mr. Rajan Nanda) and in collusion with the defendant No. 5 with an intention of grabbing its huge reserves and its substantial assets and with a view to misuse and appropriate the funds of EHIRC-Delhi, for their private gains, formed another society with an identical name Escorts Heart Institute and Research Centre, Chandigarh (EHIRC-Chandigarh) which was registered as a society at Chandigarh, solely with the intention to misappropriate funds of EHIRC-Delhi.

5. In paragraph 12 of the plaint, it is alleged that the Memorandum of Association of EHIRC-Chandigarh is virtually identical to that of EHIRC-Delhi with one exception and that is the omission of Clause 3(s) which required that all income of the society would be utilised for the purposes of promotion of the aims and objects of the society and that the society would be a charitable one. It is alleged in paragraph 13 that in view of the deletion of Clause 3(s), EHIRC-Chandigarh could apply its income for purposes, which may not be charitable in nature, for example, for distribution of dividends to members.

6. The plaint then contains various allegations with regard to forged and fabricated resolutions passed in various meetings and the facts leading upto the dissolution of EHIRC-Delhi and its amalgamation with EHIRC-Chandigarh. It is also alleged in paragraph 14 that this resulted in the accumulated surpluses and assets of EHIRC-Delhi becoming available for application to non-charitable purposes in EHIRC-Chandigarh. This amalgamation, it is alleged, resulted in the change in the fundamental character of EHIRC-Delhi. In paragraph 17 of the plaint, it is alleged that EHIRC-Chandigarh moved an application under Section 565 of the Companies Act, 1956 for registration as a limited company under Part IX of the Companies Act, 1956. Thereafter, the new company Escorts Heart Institute and Research Centre Limited (EHIRCL) [Defendant No. 2] was incorporated with the Registrar of Companies, Punjab, Himachal and Chandigarh having its office at Jallandhar, as on 30.5.2000. It is alleged that in this way, EHIRC-Delhi, a charitable society, with charitable objects and reserves of over Rs. 110 crores was converted into a limited company in which Escorts Limited (defendant No. 1) held 80% of the shares. The balance 20% being held by other private companies/individuals.

7. In paragraph 31 of the plaint, it is alleged that the Memorandum of Association of EHIRC-Delhi, created an obligation on the members of that society to utilise the income and property of that society only for the purpose of charity. It was further averred that any diversion of income and property for non-charitable purposes would constitute a breach of trust reposed in the governing body. It was further alleged that the amalgamation of EHIRC-Delhi with EHIRC-Chandigarh resulting in the alienation of the property of EHIRC-Delhi and its utilisation for the purposes other than those for which the members had been originally authorised thus constitutes a breach of trust.

8. In paragraph 33 of the plaint, it has been alleged that Escorts Limited (defendant No. 1) as a founder member of the governing body of EHIRC-Delhi, was entrusted with the obligation to utilise the income and properties of EHIRC-Delhi only for charitable purposes. It is further averred that Escorts Limited (defendant No. 1) was in a fiduciary capacity and by adopting the colourable device of amalgamation and registration of a limited company, has obtained a substantial beneficial interest in the property of the society and has also sought to make profits like selling its interest in the property in the shape of shares in EHIRCL (defendant No. 2). It has then been alleged that the action of Escorts Limited (defendant No. 1) in acquiring the beneficial interest in the properties meant for public charity while being legally obliged to act as a trustee for the same is a breach of trust as also a criminal breach of trust.

9. Again in paragraph 40 of the plaint, it is averred that the series of events from the amalgamation of EHIRC-Delhi with EHIRC-Chandigarh till the conversion of EHIRC-Chandigarh into the company (EHIRCL) had resulted in a charitable society holding public funds being illegally converted into a limited company which exists for profits/assets to be distributed amongst its members. In this context, it has been alleged that the conversion of EHIRC-Chandigarh into a company limited by shares capable of distributing dividends and assets to its members is in complete violation of the provision of the Companies Act, 1956 and is a breach of trust and a fraud on the exchequer and the general public, including the various donors to EHIRC-Delhi.

10. In the cause of action paragraph, i.e. paragraph 45 of the plaint, the plaintiffs have stated that the cause of action for filing the present suit arose when EHIRC-Delhi was wrongly amalgamated with EHIRC-Chandigarh and when the same was wrongly converted into a limited company and when funds were raised by defendant No. 1 against its shares in defendant No. 2 and lastly when the plaintiffs came to know through newspaper reports, including the Hindustan Times, New Delhi dated 21.9.2005 that the defendant No. 1 is proposing to divest its holding in defendant No. 2 to third parties and is not going to get the character of defendant No. 2 reconverted to a society having a charitable purpose.

11. In the context of these pleadings, the plaintiffs have made the following prayers:

PRAYERS

In the facts and circumstances, it is therefore, most respectfully prayed that this Honble Court may be pleased to:

1A. pass a decree of declaration declaring that no amalgamation of EHIRC Delhi took place with EHIRC Chandigarh;

(a) in the alternative, pass a decree of declaration declaring the amalgamation of EHIRC-Delhi with EHIRC-Chandigarh as non est, void and bad in law in view of the provisions contained in the Societies Registration Act, 1860;

(b) pass a decree of declaration thereby declaring the conversion of EHIRC-Chandigarh (post amalgamation) into a Limited Company under the Companies Act, 1956, as being void and contrary to law;

(c) pass a decree of permanent injunction in favour of the plaintiffs and against the defendant No. 1, injuncting its officers, agents and employees from transferring, alienating or otherwise creating any third party rights or interest with respect to the shares held by the defendant No. 1 in defendant No. 2;

(d) pass a decree of permanent injunction in favour of the plaintiffs and against the defendant No. 2, its officers, agents and employees from registering any transfer of shares effected by the defendant No. 1;

(e) pass a decree of mandatory injunction directing the restoration of the assets, properties and facilities of the second defendant, and its ownership, management and control and its character and structure to its original status of a public charitable institution, dedicated wholly and exclusively to public service;

(f) award costs of the suit in favour of the plaintiffs and against the defendants;

(g) pass such further order or directions as this Honble Court may deem fit and proper on the facts of the present suit.

12. Dr. Singhvi, the learned Senior Counsel, appearing on behalf of the defendant No. 1, submitted that the averments made in the plaint, which have been indicated above, leave no manner of doubt that the plaintiffs present suit is founded upon the alleged breach of trust created for public charitable purpose. The relief that has been sought in the present suit also falls within the scope of the reliefs indicated in Clauses (a) to (h) of Sub-section (1) of Section 92, CPC. Consequently, it was contended, it became incumbent upon the plaintiffs to have obtained the leave of the Court before they instituted the present suit. It was submitted that the requirement of taking leave of the Court before a suit of the nature indicated in Section 92, CPC could be instituted, is a mandatory one and is a condition precedent to the maintainability of the suit. In case such leave has not been taken when it is required to be taken, the suit would be barred by law and the plaint would be liable to be rejected under Order 7 Rule 11(d), CPC. Dr Singhvi also submitted that it has not been stated anywhere in the plaint that any leave was taken. Consequently, placing reliance on R.M. Narayana Chettiar and Another v. N. Lakshmanan Chettiar and Others, 43 (1991) DMC 1 (SC)=AIR 1991 SC 221 [LQ/SC/1990/611] =1991 (1) SCC 48 [LQ/SC/1990/611] ; Hari Bhagwan Sharma and Others v. Badri Bhagat Jhandewalan Temple Society and Others, 27 (1985) DLT 68 [LQ/DelHC/1984/72] ; Jathedar Sandhu Singh and Others v. Charan Singh and Others, AIR 1972 P & H 347; R. Krishnappa Shetty v. L. Ramakrishnappa and Others, 1995 AIHC 308 and Lucknow Diocessan Trust Association, Allahabad and Others v. Sachindranand Bakshi and Others, AIR 1990 All. 202 [LQ/AllHC/1990/173] (DB), the learned Counsel submitted that the plaint ought to be rejected.

13. It was also contended by Dr. Singhvi that the plaint was liable to be rejected on the ground of limitation and acquiescence. He submitted with reference to paragraph 45 of the amended plaint, which relates to cause of action, that, according to the plaintiffs, the cause of action arose when EHIRC-Delhi amalgamated with EHIRC-Chandigarh. That happened in 1999-2000. The cause of action, according to the plaintiffs, again arose when EHIRC-Chandigarh was converted into a limited company (EHIRCL). That also happened on 30.5.2000, the date of incorporation. It was also submitted that, in any event, the plaintiff No.1 was a director in EHIRC-Delhi as well as in the defendant No. 1 in 1990-2000 and was well aware of all these facts. Consequently, the clock for the purposes of limitation began to run in the year 2000 and expired in 2003. The suit has been filed in 2005 and is, therefore, barred by time.

14. In IA No. 9359/2005, Mr. P.V. Kapoor, the learned Senior Advocate, who appeared on behalf of the applicant/defendant No. 2, submitted that the plaint does not disclose any cause of action and the suit is also barred by limitation. With regard to his first contention, he submitted that a reading of the plaint would indicate that it is based entirely on the allegation that a charitable society has been converted into a company without charitable objects and this has amounted to breach of trust on the part of the members of the governing body of EHIRC-Delhi. The reliefs are also directed against the amalgamation of EHIRC-Delhi with EHIRC-Chandigarh and its subsequent conversion into a limited company (EHIRCL). Restoration of the assets and properties to the original status of a public charitable institution has been sought. It is clear that the plaintiffs have not claimed any personal reliefs for themselves. Nor have they indicated as to which legal right of theirs has been violated or infringed by the defendants. Consequently, the plaintiffs, who do not seek any relief for themselves, would obviously not have any locus standi or cause of action for seeking the reliefs that they do in the present suit. Referring to the Supreme Court decision in Popat and Kotecha Property v. State Bank of India Staff Association, VI (2005) SLT 529=III (2005) CLT 201 (SC)=JT 2005 (12) SC 302 [LQ/SC/2005/854] , Mr. Kapoor submitted that the plaintiffs must show a clear right to sue and if that is not disclosed, then the plaint ought to be rejected under Order 7 Rule 11, CPC. He also referred to T. Arivandandam v. T.V. Satyapal and Anr., 1977 (4) SCC 467 [LQ/SC/1977/296] to submit that the plaint must be read in a meaningful manner and not in a formal way to see as to whether it discloses a clear right to sue in the plaintiff.

15. On the question of limitation, Mr Kapoor submitted that the amalgamation of EHIRC-Delhi with EHIRC-Chandigarh and its subsequent conversion into a company all took place in 1999-2000. He also submitted that the plaintiff No. 1 was a party to those decisions. In any event, the suit could, if at all, have been filed in 2003, but was filed on 29.9.2005 and, therefore, it was barred by time.

16. In response to these arguments, Mr Ganesh, the learned Senior Counsel, who appeared on behalf of the plaintiffs, firstly submitted that the suit is not barred by limitation in view of Section 10 of the Limitation Act, 1963 which indicates that there is no limitation to follow property held in trust. Of course, this argument can only be made when the plaintiff accepts that EHIRC-Delhi was actually a trust and the assets were held under trust. According to Mr Ganesh, once the argument of Section 92, CPC is taken up, the argument based on limitation disappears. The two are mutually exclusive. With regard to the contention that leave had not been taken for filing the present suit, Mr. Ganesh submitted that Section 92, CPC is not attracted in the present case. He referred to Chairman Madappa v. M. N. Mahanthadevaru and Others, AIR 1966 SC 878 [LQ/SC/1965/260] (para 10) to submit that the object of Section 92 was to protect trusts from frivolous litigation by third parties. He also referred to R.M. Narayana Chettiar and Another v. N. Lakshmanan Chettiar and Others, 43 (1991) DMC 1 (SC)=AIR 1991 SC 221 [LQ/SC/1990/611] =1991 (1) SCC 48 [LQ/SC/1990/611] to submit in similar vein that Section 92, CPC was intended to prevent harassment of the trustees through frivolous litigation by third parties. However, I do not see as to how these decisions in any manner promote the case of the plaintiffs. What has to be seen, as is noted below, is whether the ingredients of Section 92, CPC are satisfied or not. He also submitted that suit against third parties does not attract Section 92, CPC. The defendant No. 1 and defendant No. 2 are not trustees and the reliefs are claimed against them, therefore, Section 92, CPC would not be applicable. He also referred to Bishwanath and Another v. Sri Thakur Radha Ballabhji and Others, AIR 1967 SC 1044 [LQ/SC/1967/34] to submit that the suit against a alienee of trust property is not one which is covered under Section 92, CPC. But it must be remembered that in the case before the Supreme Court, there was no allegation of breach of trust, whereas in the present case, the suit is founded on the allegation of breach of trust. Mr. Ganesh also referred to various other decisions, including Kalyana Venkataramana Aiyangar and Another v. Kasturi Ranga Aiyangar, AIR 1917 Mad. 112 (FB); Abdur Rahim and Others v. Syed Abu Mahomed Barkat Ali Shah and Others, AIR 1928 PC 16 [LQ/PC/1927/114] ; Veerbasavaradhya and Others v. Devotees of Lingadagudi Mutt and Others, AIR 1973 Mysore 280; Uma Shanker and Others v. Salig Ram and Others, AIR 1975 All. 36 [LQ/AllHC/1974/189 ;] ">1975 All. 36 [LQ/AllHC/1974/189 ;] [LQ/AllHC/1974/189 ;] (FB); Harendra Nath Bhattacharya and Others v. Kaliram Das (dead) by his Legal Representatives and Others, AIR 1972 SC 246 [LQ/SC/1971/600] ; Bishwanath and Another v. Sri Thakur Radha Ballabhji and Others, AIR 1967 SC 1044 [LQ/SC/1967/34] and Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddy, AIR 1967 SC 781 [LQ/SC/1966/174] .

17. The first thing that has to be considered in this case is whether the suit is of the kind as would fall within the four corners of Section 92, CPC. It is apparent that before Section 92, CPC is attracted, there must be (1) an alleged breach of trust; (2) the trust may be express or constructive; (3) the trust, however, must have been created for public purposes (of a charitable or religious nature); and (4) the suit must be instituted so as to obtain a decree of the nature indicated in Clauses (a) to (h) of Sub-section (1) of Section 92, CPC. It has to be seen as to whether the present case satisfies these tests. In the earlier part of this judgment, the averments made in the plaint have been referred to in detail and they clearly indicated that the plaintiffs have alleged breach of trust. It is also clear that the plaintiffs have alleged that EHIRC-Delhi was constituted for public purposes of a charitable nature. The reliefs that have been sought all pertain to re-establishing the public charitable nature of the assets of EHIRCL (defendant No. 2), owned in major share by Escorts Limited (defendant No. 1). Such reliefs may be covered under Clause (c) and definitely under Clause (h) of Sub-section (1) of Section 92, CPC. In my view, therefore, the plaintiffs were required to have obtained the leave of the Court before instituting the present suit. As noted in the decisions referred to by the learned Counsel for the defendant No. 1, the requirement of obtaining leave of the Court is not a mere formality, but a mandatory condition precedent for the institution of a suit under Section 92, CPC. If this pre-condition is not satisfied, the suit would be barred by the provisions of Section 92, CPC consequently, the plaint would be liable to be rejected on the ground referred to in Clause (d) of Order 7 Rule 11, CPC. In the present case, this condition precedent has not been satisfied. Admittedly, no leave of the Court has been taken prior to the institution of the present suit. Consequently, the plaint has to be rejected under Order 7 Rule 11(d), CPC.

18. With regard to the argument that the plaint does not disclose a cause of action, it may be noted that, if it is for the time being assumed that Section 92, CPC does not apply, the plaint does not disclose any cause of action in favour of the plaintiffs. The entire suit is based on the allegation of breach of trust and conversion of a society having public charitable objects into a company with objects of private gain and profitability. No relief personal to the plaintiffs have been claimed in the plaint. The question that may be asked is how are the plaintiffs affected Why have they filed this suit Obviously, they have not sought any personal relief. Therefore, they are not personally affected. Then, what have they sued for and for whom These questions and answers indicate and reinforce the conclusion that the suit cannot, but be one which falls within the four corners of Section 92, CPC. Because, the moment one tries to bring it out of the folds of Section 92, CPC, it does not appear to have the oxygen to survive. The suit has also not been filed in a representative capacity under Order 1 Rule 8, CPC. Can one bring a suit in which a relief is claimed for another person Certainly not. Since the plaintiffs do not claim any reliefs for themselves, it is apparent that they do not have any cause of action. The plaint is, therefore, also liable to be rejected on the ground that it does not disclose a cause of action in favour of the plaintiffs.

19. As regards the issue of limitation, it would not be appropriate to go into this question at this stage because, in my view, had a decision not been taken with regard to the Section 92, CPC argument and the decision that the plaint does not disclose a cause of action, then it would have been necessary for me to examine the question of limitation. I further note that if that had been the case, then the question of limitation could not have been answered at this stage without requiring further evidence because there is a plea of knowledge taken by the plaintiff No. 1 and that plea has to be taken to be true and correct while deciding an application under Order 7 Rule 11, CPC. The issue of limitation, if the suit were to survive, would have had to be decided at the stage of trial. Consequently, I cannot and need not return any finding on this aspect.

20. In view of the foregoing discussion, since I have held that the condition precedent for filing of a suit under Section 92, CPC has not been satisfied and that, in any event, the plaint does not disclose a cause of action in favour of the plaintiffs, the plaint is rejected under the provisions of Order 7 Rule 11 Clauses (d) and (a) (respectively).

These applications are allowed. The plaint is rejected. The suit and all pending applications stand disposed of.