Home Case Index All Cases Companies Law Companies Law + Tri Companies Law - 2020 (11) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (11) TMI 125 - Tri - Companies LawOppression and Mismanagement - prayer to waive the requirements prescribed under Section 244 of the Act to enable the Petitioners to apply under Section 241 seeking the reliefs contemplated thereunder - Whether the 35 consents submitted by the Petitioners are valid? - HELD THAT:- Based on paragraphs 5 and 6, it is seen that the number of double counts is 2 thereby the total number of consents is reduced to 66. The place of execution of authorizations provided by the members were outside India and were not authenticated by a notary public of the respective country or by the Indian consulate, hence they are not valid authorizations. This Tribunal therefore, cannot accept the argument advanced by the Petitioners in this regard. Whether the members authorized the Petitioners to file this Company Petition? - HELD THAT:- In the instant case none of the members (apart from the three Petitioners) have authorized (which authorization itself is not proper) the Petitioners to file the instant Petition under proviso to Section 244. It is seen that the consents submitted by the Petitioners clearly read as ‘Consent Under Section 241 of the Companies Act, 2013 to make a Petition under Section 241 of the Companies Act, 2013”.Hence, this Tribunal cannot agree with the submissions made by the Petitioners in this regard. Whether (proposed) application under Section 241 pertains to ‘oppression and mismanagement’? - HELD THAT:- In my view the allegation made against the Respondent Company in the instant petition will not amount to Oppression and Mismanagement. As shareholders of the respondent company, the petitioners were entitled to highlight the alleged acts. The petitioners have not produced any documents to prove that they raised/highlighted the issues and demanded explanation from the Board. In the letter dated 07.02.2020, the Petitioners have stated that a large number of shareholders have sentiments and apprehension of gross mismanagement of the 1st Respondent Company - this Tribunal cannot agree with the submissions made by the Petitioners in this Company Petition. This Bench found that the Petition filed by the Petitioners is not maintainable under the Companies Act, 2013. Whether there is an exceptional circumstance made out to grant ‘waiver’, so as to enable members to file application under Section 241 etc.? - HELD THAT:- It is settled law that the Tribunal is not required to decide merit of (proposed) application under Section 241, but required to record grounds to suggest that the applicants have made out some exceptional case for waiver of all or of any of the requirements specified in clauses (a) and (b) of Sub-Section (1) of Section 244 as decided by the Hon’ble NCLAT in its judgement in Cyrus Investments Ltd. And Anr. Vs. Tata Sons Ltd. & Ors. [2017 (9) TMI 1500 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] - Paragraph 150 of the Judgment in Cyrus (supra) clearly lays down that merits of the case cannot be decided at the stage of waiver. The Hon’ble Appellate Tribunal has arrived at this conclusion on the ground that if the merits are decided at this juncture, then the Tribunal would be adjudicating a Petition under Section 241 which is still in the proposed application stage at the juncture of grant of waiver. The petitioners have also agreed in the rejoinder filed by them that the merits of the case cannot be discussed at this juncture, stating that “there are no issues to be decided in this Application” - The burden of establishing exceptional circumstances is on the Petitioners. However, the Petitioners clearly stated that exceptional circumstances are not a sine qua non to seek waiver under the proviso to Section 244(1). Leaving aside exceptional circumstances, the Petitioners have not cited any fact which entitled them to get the benefit of waiver. As such the answer to the fourth point is also negative. Petition dismissed.
|