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2021 (4) TMI 1149 - Tri - Companies LawRight to apply u/s 241 of Companies Act - petitioners do not hold minimum percentage of shareholding in the capital of the Respondent No. 1 on which is require to file a petition - whether this Tribunal can exercise its discretion which is vested with it in terms of the provisions of Section 244 of Companies Act, 2013? - HELD THAT:- From the perusal of Section 241, it is noted that as per proviso to Section 244(1), the word "may" has been used as regard to waiver of all or any of the requirements specified in Clause (a) or Clause (b) so as to enable the members to apply under Section 241 of Companies Act, 2013. Clause (b) is not applicable as Respondent no. 1 is having a share capital. As far as the fact of the petitioners are not having requisite number shareholders or holding not less than one tenth of issued share capital are concerned, there is not dispute that the petitioners, in application filed under Section 241 of Companies Act, 2013, do not meet these criteria. Further, there is no dispute as regard to payment of amount of calls on such of shares or of other sums due on their shares. We have to look whether the applicants have made out an exceptional case for waiver of all or any of the requirements specified in Clause (a) of sub-section 1 of Section 242 of Companies Act, 2013? In this process, in our considered opinion, it is inevitable that the merits of the application field under Section 241 of the Companies Act, 2013 may have to be considered. Having said so, we, however, make it clear that this is to be done just to meet the object and criteria laid down in Section 244 of Companies Act, 2013 and views expressed on the merits for this purpose cannot be considered or treated as views expressed by this Authority which may amount to determination of the main dispute either against or in favour of either parties. Keeping this limitation or factor, in our mind, the facts relied on by the petitioners for getting the waiver, we state that these pertain to siphoning off funds through Shell Companies promoted by Respondent no. 2. On a query from this Bench whether any material or resolution exists in records or otherwise which defines such distribution of responsibilities between two Managing Directors in terms of provisions of Companies Act, 1956 or Companies Act, 2013. However, no material has been brought on record to this effect. It has also been claimed by the Respondent No. 1 and 2 that even the transactions made basis for filing an application under Section 241 of Companies Act, 2013 pertain to a period much prior to three years from the date of filing of that petition, hence, the petition filed under Section 241 of Companies Act, 2013 has as such barred by limitation. It is also noted that Respondent No. 1 company is a listed company and more than 6,000 (six thousand) shareholders are member of the company and none of them has joined the petitioners. The petitioner cannot be absolved from responsibilities of such alleged transactions of siphoning off or fraud, though, he may not be involved actively. Since, he was the Chairman and Managing Director and many of such transactions required the approval of the Board of Directors or otherwise also it cannot be said that the petitioner No. 3 did not have any knowledge thereof. It is also a settled judicial principle that one who is seeking some exemption or waiver means that he is invoking the principle of equity, therefore, the integrity of such person should be above board and atleast it should not be under cloud. Even otherwise, in case of allegations of nature involved in petition filed under Section 241 of Companies Act, 2013 cannot rule out of possibility of collective involvement of people at the helm of affairs. Thus, considering the submissions made by all the sides and material on record, we hold that the petitioner has not been able to establish a case which may pursued us to accede to his request of waiver of company as specified under Section 244(1)(a) of the Companies Act, 2013. Application dismissed.
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