Home Case Index All Cases Companies Law Companies Law + AT Companies Law - 2021 (6) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (6) TMI 904 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHIOppression and mismanagement - Petitioner having less than 10% of the issued share capital of the Company - section 244 of the Companies Act - HELD THAT:- Based on the statutory provision of Section 241 and 244 of the Companies Act, 2013, it is clear that the Application to the Tribunal for relief in cases of oppression and mismanagement can be filed by any member of the Company who complains that the affairs of the Company are being conducted in a manner prejudicial to the public interest or the manner prejudicial or oppressive to him or any other member or members or the manner prejudicial to the interest of the Company - But the precondition for filing a petition under Section 241 is provided under Section 244 of the Companies Act 2013. It lays down the precondition of filing a Petition that such member has a right to apply under Section 244 for an order under this Chapter. Section 244 (1) (a) of the Act lays down the precondition being that any member or members must hold not less than one-tenth of the total number of its Members, or any member or members must hold not less than 10% of the issued share capital of the Company. Admittedly Petitioner/Respondent No. 1 in this Appeal had filed the Petition under Section 241 of the Companies Act 2013 alleging acts of oppression and mismanagement against the Respondents. However, the Petitioner admits that its shareholding is less than the required 10% eligibility criteria for filing the petition. Therefore, instead of seeking a waiver under proviso to Section 244 (1) of the Companies Act 2013, the Petitioner has sought relief for granting a waiver from the 10% eligibility criteria - The NCLT had the power to grant a waiver from any of the conditions laid down regarding the eligibility criteria for filing the Petition under Section 241 of the Act. But Applicant/Petitioner has to assign a reason; based on that, the NCLT may or may not waive any of the eligibility criteria as laid down under Section 244 of the Act. Admittedly, in this case, notices have been issued without admitting the Petition and even without considering the eligibility criteria for filing a Petition under Section 241 of the Companies Act 2013. Consequently, an Application seeking a waiver from eligibility criteria under proviso to Section 244 (1) of the Companies Act is pending - Appeal disposed off.
|