H.L. Gokhale, J.
1. First of the above two appeals i.e. Appeal (Lodging) No. 643 of 2006 is filed by a Company registered under the Companies Act, 1956 which, inter alia, conducts, supervises and oversees all horse racing in Western India (Mumbai and Pune). The 1st respondent to this appeal is by occupation a Trainer of horses and is permitted to operate in the race course for training the horses for various owners whose horses run the races. The 1st appellant-Club desires that the horse races at its club should be genuine and fair and that there should not be any doping of the horses who run the races.
2. At the time of a race on 23rd March, 2006, one of the successful horses was Glory by name and who was trained by respondent No. 1. It is alleged by the 1st appellant-Club that at the end of the race when the urine sample of this horse was collected by a Jamadar working under the 1st respondent, he mixed it with water. The urine sample is collected to test whether any horse has been doped. The appellants amongst others charged the 1st respondent for the vicarious liability and after holding an enquiry, suspended his licence as a trainer. The original order of suspension was passed on 26th March, 2006 by the Committee of Stewards of the 1st appellant. That order was carried in appeal to respondent No. 4 i.e. Board of appeal. The Board of appeal reduced the punishment to suspension of the licence for a period of five and half months by its order dated 28th April, 2006.
3. Being aggrieved by this order, the 1st respondent herein (original plaintiff) filed Suit No. 2173 of 2006 wherein the first prayer is for a declaration that the above two decisions are null and void. The second prayer is for a permanent injunction restraining the defendants from acting upon and/or enforcing the order dated 28th April, 2006. The third prayer is to seek compensation as detailed in Exhibit-AV to the Plaint quantifying the claim at Rs. 31,75,368/- with further interest from the date of filing of the Suit till payment. The 1st respondent (original plaintiff) also prayed for an injunction restraining the appellants herein (original defendant No. 1) from implementing and enforcing the aforesaid two decisions.
4. The 1st respondent took out a Notice of Motion bearing No. 2457 of 2006 for the very interim relief. The Motion was heard by a learned Single Judge for ad-interim order and has been pleased to grant the relief by an order dated 2nd August, 2006. The ad-interim order has been granted in terms of prayer Clause (d) of the Motion, whereby the appellants herein are restrained from enforcing the said decisions and/or from obstructing the 1st respondent herein from carrying on the activities as a Trainer. It is material to note that though the second impugned order is passed on 28th April, 2006, the suit is filed two and half months later in July, 2006. Being aggrieved by this ad-interim order, this appeal has been preferred by the appellants. The second connected appeal being Appeal No. 608 of 2006 is filed by the Committee of Stewards. The ad-interim order passed by the learned Single Judge has been stayed in the meanwhile.
5. We have heard Appeal (Lodging) No. 643 of 2006 filed by the 1st appellant-Club. The appeal has been argued at length by the Counsel representing the appellants as well as the 1st respondent. Since a decision on this ad-interim order will practically operate as a decision on the Motion itself, the Counsel for the parties have agreed that while deciding this appeal, this Court may as well dispose of the Motion. They have made their submissions on the Motion accordingly.
6. On behalf of the appellants, it was principally pointed out that the 1st respondent is a licensee and is permitted to come into the premises of the Club only as a Trainer of a horse. With a view to see to it that the races are run fairly, the appellants have set up closed circuit surveillance cameras (CCTV) to monitor various developments concerning the races. On 23rd March, 2006, after the particular event was over, this horse Glory was declared to be successful. At the end of the race, the Jamadar attending the horse is supposed to take the horse to an enclosure where the urine sample is collected. In the instant case, there is no dispute that on the CCTV it is seen that the Jamadar was collecting the urine sample and at that time he mixed up some water in the bag in which the sample was collected. It is material to note that in Clauses 2, 4 and 11 of his application for a Trainer's licence the 1st respondent has accepted the following terms:
2. I have familiarized myself with the procedures laid down from time to time by the Stewards of the Club for holding enquiries and/or otherwise dealing with matters arising out of and pertaining to racing. I accept the validity and reasonableness of the procedure and agree to be bound and observe all the decisions and orders of the Stewards of the Club as well as the Board to appeal under the Articles of Association of the Club.
4. I take the full responsibility for the horse in my charge or which will subsequently come into and to be responsible to the Stewards of the Club for my irregularities or breaches in the Rules, Regulations or Notices in connection with any of the horses in my charge.
11. I accept that as a licensee of the Club I have an obligation towards ensuring that racing is properly conducted and administered and I shall not take any solution or step which will have the effect of in any way disrupting or adversely affecting racing.
7. It is further material to note that before the race is run the Trainer has signed a document confirming certain details. In that document addressed to the Secretary of the 1st appellant-Club, he has accepted that when the race will be run on 23rd March, 2006, the urine sample of his horse Glory will be collected in the presence of his Jamadar Kalu Singh Rathod. Thereafter he has declared and certified in Clause-3 thereof as follows:
I am responsible for the collection of urine sample from my horse and that the urine sample collected from the horse named hereinabove has properly been sealed and packed by the horse's representative in my presence or in the presence of my representative.
8. In view of the fact that water was seen being mixed up with the urine sample on the CCTV, initially a preliminary enquiry was conducted on the very day by the Stipendiary Stewards into this incident of tampering. The notes of enquiry were recorded. Thereafter a regular enquiry was conducted by the Committee of Stewards on 26-3-2006. At the time of enquiry the Chairman of the Committee informed the 1st appellant about the purpose of the meeting, as to what was the allegation, then recorded the explanation of Jamadar Kalu Singh and the 1st respondent-Trainer as well as the owner of the horse. Upon the insistence of the owner, the second sample of the urine of the horse was collected but the Chairman of the Committee clarified that the second sample would have no legal value. He did observe that everything will depend upon the result of the original urine sample but it was clear to everyone that the enquiry was into the allegation of tampering. Therefore, the question to be gone into was not merely as to what would be the result of the sample but whether any such act of tampering was indulged into by the Jamadar and whether he and the Trainer would be responsible for it. After the aforesaid preliminary enquiry was conducted on the same date, a notice for a regular enquiry had been served on the Trainer on 25th March, 2006 calling upon him for an enquiry into the incident of tampering with the urine sample of Glory on 23rd March, 2006. The transcripts of the earlier enquiry were made available to him. Detailed statements of Kalu Singh and Trainer were recorded when the enquiry was held and their explanation was sought. Before proceeding with the regular enquiry, the Committee of Stewards considered the notes of the preliminary enquiry made by the Stipendiary Stewards amongst other documents. During the enquiry the 1st respondent-Trainer clearly admitted that it was a very stupid act on the part of the Jamadar. At the end of the enquiry, the Stewards decided to withdraw the licence of the Jamadar and not to renew it for a period of five years. As far as the 1st respondent is concerned, they decided that his licence will also be withdrawn and it will not be granted for one year i.e. upto and inclusive of 9th April, 2007.
9. The 1st respondent filed an appeal against the said order before the Board of appeal and as noted above, the appeal has led to reduction of punishment to withdrawal of licence and non-renewal till five and half months.
10. When the Motion was heard by the learned Single Judge, she was impressed by the fact that some influence appeared to have been exerted on a member of the Appellate Committee and that a Member thereof was intimidated into deciding the appeal in a particular manner. The learned Judge was also impressed by the submission that the urine sample had been collected to find out whether there was any prohibited substance therein, implying that the act of dilution by itself was not the misconduct alleged. The learned Judge also held that the appellants did not establish that the 1st respondent was vicariously liable for the act of the Jamadar and the procedure adopted was not in consonance with the principles of natural justice. This led to the learned Judge passing the ad-interim order in terms of prayer Clause (d) which restrained the appellants from enforcing their decisions. This order is challenged in the present appeals.
11. It was submitted on behalf of the appellants that the allegation against the Trainer was that the Jamadar, who was the attendant working under him, tampered with the urine sample. The act of tampering itself was something which required an appropriate action. The fact that the urine sample did not show any damaging input is not something for which the 1st respondent or Jamadar could be exonerated.
12. It was submitted on behalf of the appellants that the 1st respondent was a licensee and his licence could be determined or revoked if any such misdemeanour was detected. That was a term of the licence which could be seen from the relevant clauses of the licence which are quoted above.
13. Mr. Chagla, learned Counsel appearing for the appellants, submitted that when it comes to taking an appropriate action against the licensee, as a third party, he was on a much weaker footing when compared with an employee as against his employer or member of a Club as against the Club. Even so, in the present case, first a preliminary enquiry was held, thereafter a detailed enquiry by the Committee of Stewards and the 1st respondent was afforded an opportunity to file an appeal which was also decided by the Authority concerned. In his submission, the principles of natural justice could not be carried to an extreme proposition. The enquiry notes clearly show that the 1st respondent understood the purpose for which the enquiry was being conducted. He had fully participated therein and thereafter the report was made by the Committee of Stewards giving reasons and holding the Trainer also vicariously liable and directed that his licence be suspended.
14. Our attention was drawn to Rule 202 of the Rules of Racing framed by the 1st appellant-Club which are effective from 14th December, 2005. Reliance was placed on Rule 202(i) and (viii) of these Rules which read as follows:
202. The Stewards and/or the Stewards of the Club shall fine and/or punish and/or warn off and/or exclude and/or eject and/or disqualify and/or suspend or withdraw licences, for any reason or reasons, from any race course or place where these Rules are in force, any of the following persons viz.:
(i) Any person who in their opinion has been guilty of any dishonest, corrupt, fraudulent, or improper practice or dishonourable action in connection with racing anywhere.
(viii) Any person who conspires or connives with any other person for the commission of, or shall connive with any other person being guilty of any corrupt of fraudulent practice in relation to racing to any place; or
15. Mr. Chagla then referred us to a judgment of the Chancery Division in the case of Maclean v. The Workers' Union reported in (1929) 1 Ch. 602 . That was a case of disqualification of a member of a Trade Union. The plaintiff therein had issued circulars in connection with the election to the Executive Committee of the Trade Union without obtaining approval from the Committee. When he stood for the election to the post of President of the Union, the attention of the Executive Committee was drawn to this fact and the Committee thereafter fined and disqualified him. Before doing that a day was fixed at his convenience for affording him a hearing in regard to the breach of rules. He attended that meeting, stated his case and then withdrew. The Committee thereupon resolved that he had committed a serious breach of the rule in question and then he was excluded from membership of the Union. It was held in that matter that the Court had no jurisdiction to vary or to set aside the decision of the domestic Tribunal if in giving its decision the Tribunal had acted honestly in accordance with its own rules and in good faith. As far as the distinction between a Court of justice and a domestic Tribunal is concerned, what is observed in that judgment is quite apt which reads as follows:
Speaking generally, it is useful to bear in mind the very wide differences between the principles applicable to Courts of justice and those applicable to domestic tribunals. In the former I he accused is entitled to be tried by the judge according to the evidence legally adduced and has a right to be represented by a skilled legal advocate. All the procedure of a modern trial, including the examination and cross-examination of the witnesses and the summing-up, if any, is based on these two circumstances. A domestic tribunal is in general a tribunal composed of laymen. It has no power to administer oath and, a circumstance which is perhaps of greater importance, no party has the power to compel the attendance of witnesses. It is not bound by the rules of evidence; it is indeed probably ignorant of them. It may act, and it sometimes must act, on mere hearsay, and in many cases the members present or some of them (like in English jury in ancient days) are themselves both the witnesses and the judges. Before such a tribunal counsel have no right of audience and there are no effective means for testing by cross-examination the truth of the statements that may be made. The members of the tribunal may have been discussing the matter for weeks with persons not present at the hearing, and there is no one even to warn them of the danger of acting on preconceived views.
Thereafter it referred to the observations of Court of appeal (per Bowen, L. J.) in Leeson v. General Council of Medical Education and Registration, 43 Ch. D. 366 to the following effect:
There must be due inquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard, and the decision must be honestly arrived at if he has had a full opportunity of being heard.
16. The second judgment relied upon by Mr. Chagla was in the case of T.P. Daver v. Lodge Victoria No. 863, S.C. Belgaum and Ors. reported in AIR 1964 SC 1144. This was a case where a member of a Masonic Lodge was removed from its membership on the ground that he had committed 12 masonic offences. He was sent the notice of the complaint against him and was informed that he was entitled to be present and to state his defence. The member concerned submitted his answers in extenso to the charges levelled against him. In a special meeting of the Lodge the charges were read out and were put to vote after receiving comments from the members. The members held that each of the charges was proved and then the order excluding him from membership was passed. An appeal was filed to the District Grand Lodge Bombay and then to the Grand Lodge of Scotland which confirmed that decision. On a Suit being filed to challenge these decisions and the matter being carried to the Apex Court, it referred with approval to the above cited decision in Maclean v. The Workers' Union (supra). The Apex Court then observed in paragraph 9 as follows :
The following principles may be gathered from the above discussion.
(1) A member of a masonic lodge is bound to abide by the rules of the lodge; and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules.
(2) The lodge is bound to act strictly according to the rules; whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of construction in that regard.
(3) The jurisdiction of a civil Court is rather limited; it cannot obviously sit as a Court of appeal from decisions of such a body; it can set aside the order of such a body, if the said body acts without jurisdiction or does not act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra.
17. The third case relied upon by Mr. Chagla is concerning a similar Turf Club. This was also a case of cancellation of Trainer's licence on a drug being administered to a horse. In the judgment of the Privy Council in the case of Lennox Arthur Patrick O'Reilly and Ors. v. Cyril Cuthbert Gittens reported in AIR 1949 PC 313 what is stated in paragraph 15 thereof is quite relevant wherein the Privy Council observed as follows:
All these matters, however, are essentially matters for the domestic tribunal to decide as it thinks right. Provided that the tribunal does not exceed its jurisdiction and acts honestly and in good faith, the Court cannot intervene, even if it thinks that the penalty is severe or that a very strict standard has been applied.
18. We were also informed about the past conduct of the 1st respondent, namely, that there were three incidents in the past and punishments were also imposed almost of similar type which were all implemented.
19. On behalf of the 1st respondent, it was submitted that it was essentially an enquiry into the allegation of doping of a horse and the moment the report of the urine sample was a negative one, nothing remained in the enquiry. It was contended that it was not specifically stated to the Trainer that the enquiry was with respect to the dilution of the urine sample. Principles of natural justice require that the delinquent must be specifically informed as to what is the charge against him and the enquiry must be held fairly. It cannot be a premeditated decision. Besides, the Trainer cannot be held responsible for the lapses of the Jamadar. For establishing the vicarious liability of the Trainer, it must be shown that the person, who indulged into the disputed conduct, did that as a part of the duty under the Trainer. It was further submitted that the collection of urine was under the supervision of the Veterinary Doctor and not that of the Trainer. It was pointed out that neither the result of the racing was cancelled nor was the owner of the horse made to suffer seriously or at all. Our attention was drawn to Rule 67 of the Rules of Racing and particularly Clause (b) thereof which reads as follows:
b) The Veterinary Officer shall be responsible for collection of swabs of saliva and samples of urine or blood as the case may be, for the purposes of analysis as directed by the Stewards of the Meeting/Club.
20. With reference to the decisions relied upon on behalf of the appellants, it was submitted by Mr. Virag Tulzapurkar, Senior Counsel appearing for the 1st respondent-Trainer, that all these judgments imply an honest decision of the domestic Tribunal concerned. For that, it is also necessary that the delinquent concerned has got to receive the notice of the charges and an opportunity to meet them. He then submitted that the notice given to the Trainer was a vague one as compared to the one which was given to the owner. Although a second sample was collected, the Chairman of the Stewards one Mr. Shivlal Daga in his affidavit has stated that as such no second sample was necessary.
21. An allegation was made that the appellate enquiry (as well as the original one for that matter) was vitiated for the reason that one Mr. Mohit Lalwani, a member of the Appellate Board, was pressurized not to attend the Board meeting. Certain tape-recorded conversation and SMS were relied upon. It is submitted that it was planned to impose higher punishment to begin with and then to reduce it in appeal to show the reasonableness of the Club. It is, however, material to note that one of the members Dr. Cyrus Poonawalla to whom this conversation is attributed, has filed an Affidavit stating that the tapes are doctored and has denied the contents thereof. Further in defence it could be said that it is a conversation with only one person from a Seven-Member Board and that it is only about the punishment and that, by itself, cannot absolve the delinquent from the charge. But more than that it must be noted that they are lay persons and as observed in Maclean's case (supra), the members of a Domestic Tribunal may have been discussing the matter with persons not present at the hearing, and there is no one to warn them of the danger of acting on preconceived views. That, by itself, cannot lead to an inference that the enquiry and the appellate proceedings were not fair or vitiated on account of bias. One will have to see as observed in Leeson's case (supra) as to whether there was a due enquiry, the accused knew of the charge, whether he had an opportunity to defend and the decision is honestly arrived at. The decision in our case cannot be faulted on these tests.
22. As far as the vicarious liability of the 1st respondent is concerned, it was pointed out on behalf of respondent No. 1 that it was the Veterinary Officer who asked the Jamadar to collect the urine sample and not the 1st respondent. This was in addition to the earlier submission that it was the responsibility of the Veterinary Officer to collect the urine sample and not that of the Trainer. It was not denied that the Jamadar was the employee of the 1st respondent but it was submitted that for the temporary period during which he acted for the Veterinary Officer he could not be said to be acting under the instructions of the 1st respondent.
23. It was submitted that for establishing vicarious liability mens rea has got to be established as a constituent part of the crime alleged. In this behalf, reliance was placed on the judgment in Srinivas Mall Bairoliya and Anr. v. Emperor reported in AIR 1947 PC 135. Our attention was drawn to the Oxford Dictionary to show the meaning of the word 'vicarious'. It means some act which is delegated, deputed. Our attention was also drawn to the Black's Law Dictionary, Seventh Edition which defines the word 'vicarious' as performed or suffered by one person as substitute for another. Salmond and Heuston on the Law of Torts (1981 edition) was also referred to submit that a servant may have two or more masters at a given point of time. On the tort of a servant for which the master is held to be liable, a reference was made to Sitaram Motilal Kalal v. Santanuprasad Jaishanker Bhatt reported in : [1966]3SCR527 wherefrom paragraphs 27 and 30 were pressed into service. It was submitted that for a master to be vicariously liable for the acts of his servant acting in the course of his employment, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. It was then submitted that in the present case neither of the tests will apply. Paragraph 30 of this judgment was referred to point out that the act must be committed in the course of business of the master so as to form part of it and not be merely coincident in time with it as quoted from Salmond and Heuston on the Torts.
24. As far as the past record of the 1st respondent is concerned, it was submitted that the past record becomes relevant only if the misconduct is established. It cannot be useful, in any way, to decide whether at the particular time the 1st respondent was responsible for the conduct of his Jamadar.
25. We have noted the submissions of the Counsel appearing for the contesting parties. The fact remains that the 1st respondent was a licensee vis-a-vis the 1st appellant-Club. He was a Trainer appointed by the owner of the horse and in that capacity he was permitted to enter the Club premises. He got his remuneration from his owner and not from the Club. He only had the permission to enter in the Club premises and the race course as a Trainer of the horse. The terms of his licence clearly stipulated as to what was expected of him. We have quoted the relevant terms. Clause 4 thereof clearly stated that he took the full responsibility for any irregularities or breaches in the Rules, Regulations or Notices in connection with any of the horses in his charge. In Clause-11 he has accepted that he had an obligation towards ensuring that the racing is properly conducted. The confirmation letter given by him on the date of the race i.e. 23rd March, 2006 clearly stated his acceptance that he was responsible for the collection of the urine sample from his horse and that the same was collected, properly sealed and packed by the Club's representative in his presence or in the presence of his representative whose name is given as Kalu Singh in that letter. There is no dispute or denial of the fact that Kalu Singh was seen on the CCTV mixing water with the urine sample he had collected. In the preliminary enquiry, the 1st respondent clearly called the conduct of Kalu Singh as a stupid one, meaning thereby that he did not approve of it at all. As noted above, in the licence as well as in the document signed on the date of the race, he had taken full responsibility for the horse as well as for the conduct of the Jamadar who was his representative.
26. Mr. Tulzapurkar, learned Counsel appearing for the 1st respondent-Trainer, has referred to the judgment in the case of Srinivas Mall Bairoliya (supra) which was in connection with an offence under the Defence of India Rules that of contravening the order fixing the price of salt. In the present case, we are concerned with a domestic enquiry concerning a civil wrong. In view of the document which the 1st respondent had signed, mens rea no longer remains relevant. The fact that a particular act has been done is not disputed. The fact that the 1st respondent had signed the document accepting his responsibility in the event of any misconduct concerning the horse or by the Jamadar is also not disputed. Thus, in fact, the 1st respondent had accepted his vicarious liability in terms of the licence as well as the confirmation letter which he had signed on the date of the race. It is not his case that the Jamadar was acting under the instructions of somebody else. It is true that the Veterinary Officer is responsible for the collection of the sample of urine under Rule 67(b) but that cannot absolve the Trainer from the conduct of the Jamadar who was his employee. Under Rule 202 of the Rules of Racing, it is clearly stated that the Stewards can withdraw the licence of any person who in their opinion is found guilty of any dishonest or corrupt practice concerning the races or connivance therein. In our view, therefore, it is not possible for the 1st respondent to say that he was not responsible for the conduct of his Jamadar.
27. As far as the enquiry conducted by the Committee of Stewards and the appellate proceedings are concerned, it has got to be noted that they are domestic proceedings by lay persons. Strict principles of judicial determination cannot apply to these enquiries. Although much defects are sought to be pointed in the notices and the proceedings of the enquiry, the 1st respondent has not stated any where that he did not understand as to for what purpose the enquiry was being conducted or what was the charge against him. The submissions sought to be made on the basis of the tape-recorded conversation are to point out that the decisions were premeditated and that one of the members of the Appellate Board was pressurized to act in a particular manner. These allegations are denied on an Affidavit by one Dr. Cyrus Poonawalla whom the conversation is attributed. Thus, it is a matter of word against word. Merely on the strength of the Affidavit or typed copy of the alleged conversation or the denial thereof, one cannot reach any particular conclusion. The fact remains that on the date of the incident, a preliminary enquiry was held. It was followed by a detailed enquiry wherein the 1st respondent participated and the fact also remains that there was an internal appeal made available. All the pleas, which are sought to be raised by the 1st respondent, are technical pleas to submit now in Court that he should not be connected with the act of his Jamadar. It is also true that the past conducts of a person are not to be looked into at the time of deciding whether a particular action was indulged into by him or not. The fact, however, remains that the 1st respondent was proceeded with in similar domestic actions thrice earlier, held guilty and thereafter was appropriately punished. The 1st respondent, therefore, knows as to what can happen at the time of race and what conducts are supposed to be unfair conducts. He is not novice in the field. He has been charged with almost identical charges earlier. Although it is true that the past conducts are to be looked into at the time of awarding punishment, they are relevant from the aforesaid limited point of view. The 1st respondent, therefore, cannot feign ignorance about his responsibility and that of the Jamadar working under him or in what manner the enquiries are conducted. It is, therefore, not possible to accept this submission on his behalf that the enquiry was not fairly conducted or that he did not get an opportunity or that he did not know as to what action was being taken. His denial of any connivance with what Jamadar has done is also something which is difficult to accept.
28. In any case, it is a determination of domestic Tribunal. Undoubtedly the domestic Tribunal is entitled to take a view which a reasonable person can arrive at on the facts before him. In the present case, the allegation was that of tampering by mixing water with urine sample. Jamadar was seen doing it. The Trainer had taken specific responsibility for any misconduct on the part of his Jamadar. This has to be noted in the context of a responsibility of a Trainer whose horse is going for a race and he knows that at the end of it urine sample is to be taken. Surely, some limited consequence is bound to follow on him. In the present case, in view of the facts as stated above, the 1st appellant-Club has held respondent No. 1 to be vicariously liable for the misconduct of the Jamadar which is admittedly established. Where on the facts of a case the domestic Tribunal takes a particular decision a Civil Court is not expected to substitute its view for that of the domestic Tribunal unless it is based on no evidence or is something which a reasonable man cannot arrive at. In that case alone, a Civil Court can have a jurisdiction to disturb the decision of the domestic Tribunal by calling it as a perverse one. In the facts of the present case, no such perversity can be alleged. Similarly, what action is taken in the case of the owner of the horse or whether the result of the race is cancelled or not is not something which can deviate one from the expectation from the Trainer which he had clearly accepted in writing. The action taken by the 1st appellant-Club cannot, therefore, be interfered on any such count.
29. In the present matter, one has to look to the entire episode from the point of view of the regulators of the races. They are concerned with the confidence that people participating ought to have in the races that they conduct. The question is when the Club has a clear evidence on CCTV of water being seen mixed with the urine sample whether it should still allow the Trainer to go scot-free or should he be visited with appropriate consequences. As seen above, it is not a case of a member of a Trade Union or that of a member of a masonic lodge. This is a case of a licensee who is a third party. Some minimum fair play is required even in his case and undoubtedly it cannot be said that such fair play has not been observed in the present case.
30. It is further to be noted that whereas the impugned action was taken on 28th April, 2006, the suit is filed nearly two and half months thereafter on 13th July, 2006. The licence is revoked for a period of five and half months. At the end of that period, the 1st respondent can certainly apply for renewal of his licence and it is for the appellants to decide whether the licence should be renewed or not. The question is whether in the intervening period there should be any injunction restraining the appellants from acting on their decisions and whether the Court should pass such an order. It is submitted that the 1st respondent suffers in his earnings. As against that, what is to be noted is that granting of any such injunction at this stage will almost amount to granting a decree and permitting the 1st respondent to join at an interlocutory stage when the decision on his Suit is yet to be arrived at. Besides, it must be noted that the 1st respondent has quantified the loss that he has suffered or he was likely to suffer and in Exhibit-AV to the Plaint he has made a claim for compensation of Rs. 31,75,368/-. That is a claim which he can certainly get at the end of the suit in the event he is in a position to establish it. Prayer (c) of the Suit is for this compensation whereas prayer (a) is for declaration that the decisions of the appellants are null and void. Prayer (b) is for a permanent injunction. A permanent injunction is referable to Section 38 of the Specific Relief Act, 1963 and Sub-section (2) thereof directs that when any such obligation arises from a contract, the Court shall be guided by Chapter II of this Act. Section 14 of this Chapter II specifically lays down as to which contracts are not enforceable and Clause (a) thereof refers to a contract for the non-performance of which compensation in money is an adequate relief. Clause (c) refers to a contract which is in its nature determinable.
31. Mr. Tulzapurkar, learned Counsel appearing for the 1st respondent, drew our attention to a judgment of the Apex Court in the case of Ashok Kumar Srivastav v. National Insurance Co. Ltd. and ors. reported in : [1998]2SCR1199 to submit that the Suit for a declaration that the termination is invalid, though not maintainable under Section 14, was admissible by a Civil Court as a declaratory suit under Section 34. His submission is that the 1st respondent is a mere licensee and that this is not a Suit for specific performance of any contract. There cannot be any quarrel with the propositions in Ashok Kumar's case (supra) which also states amongst other in paragraph 17 that the Act is not exhaustive of all kinds of specific relief. It is, however, material to note that although the judgment does refer to Section 14 of the Specific Relief Act, it does not deal with a situation where an injunction is sought while seeking damages at the same time. As far as that aspect is concerned, the principles analogous to Section 14 will have to be extended to a situation like the present one. The reference to the judgment in Baird v. Wells reported in 44 Chancery Division 661 by Mr. Chagla, learned Counsel appearing for the appellants, in this behalf is quite apt. That was a case of expulsion of a member by a proprietary Club and irregularity of the proceedings by the Committee were raised as a ground of challenge. It was squarely held that the damages were proper relief and not injunction.
32. For the reasons above, in our view, the 1st respondent did not have a prima facie case to justify an injunction nor was any balance of convenience in his favour. The delay in filing the Suit and the fact that the punitive action will be expiring on 15th October, 2006 clearly shows that no serious prejudice is being caused to the 1st respondent. That apart, the impugned action has been taken after an enquiry and for an act of a subordinate of the 1st respondent which is not disputed. Granting any such injunction will mean interfering with the domestic decision of the Club at an interlocutory stage and interfering with its disciplinary measure. In our view, that was not called for. The learned Single Judge has, therefore, clearly erred in granting the ad-interim injunction.
33. In the circumstances aforesaid, the appeal is allowed. The impugned order dated 2nd August, 2006 passed by the learned Single Judge is set aside.
34. The Counsel for both parties had argued the matter at length. They had, therefore, accepted that the Notice of Motion itself will get worked out with the decision on this appeal. Accordingly, the Notice of Motion stands dismissed.
35. We may add that we have made the observations in this judgment on the basis of the submissions made by both Counsel appearing for the contesting parties and on the basis of the material placed before us. When the Suit is heard and decided it will certainly be open for the learned Judge deciding Suits to decide it on the basis of the evidence that would be led before the learned Judge.
36. Appeal No. 608 of 2006 is filed by the Committee of Royal Western India Turf Club. This appeal seeks to challenge the very ad-interim order which is challenged in Appeal (Lodging) No. 643 of 2006. Consequently, this appeal is also allowed.
37. In the facts and circumstances of the case, there shall be no order as to costs.