9911796707
TMI Blog2019 (2) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Single Bench Chennai in CA/121/2017, whereby and whereunder the application for waiver filed by the Respondent under Proviso to Sub-section (1) of Section 244 of the Companies Act, 2013 has been allowed. 2. At this stage, it is desirable to notice that earlier the Tribunal allowed the petition for Waiver but the order being not a reasoned order, the order was set aside by this Appellate Tribunal and matter was remitted back to the Tribunal. It is only thereafter the Tribunal on reconsideration held that the Respondent (Petitioner) made out an exceptional case for waiver. 3. Learned counsel appearing on behalf of the Appellant submit that no exceptional case has been made out by the Respondent (Petitioner) and the Tribunal failed to id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to waive the requirement as prescribed under sub-section (1) of Section 244. 145. For the reasons aforesaid, we hold that the Tribunal cannot deliberate on the merit of a (proposed) application under Section 241, while deciding an application for 'waiver' under proviso to sub-section (1) of Section 244. The factors dependent on merit (i) Prima facie case: Whether a prima facie case is made out or not is dependent on merit of the case as may pleaded in the (proposed) application under Section 241. As it is dependent on merit of the case, we are of the view that the Tribunal cannot decide the question as to whether a prima facie case has been made out or not while deciding an application for 'waiver'. (ii) Limitation: The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtains to another Company 'B' and therefore, member(s) of Company 'A' have no right to allege 'oppression and mismanagement'. In fact, it is a case of 'oppression and mismanagement' qua Company 'A', if the right of the Company 'A' is compromised. As the aforesaid disputed question is dependent on facts and merit of a case, it cannot be decided nor can be taken into consideration while deciding an application for 'waiver'. (iv) Arbitration: The question of referring a matter under Section 8 or 45 of the Arbitration and Conciliation Act, 1996 does not arise during the stage of decision of an application for 'waiver'. If the Tribunal, after perusal of proposed application under Section 241, without deciding the merit of the case forms opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we hold that the Tribunal while deciding an application for 'waiver' under proviso to sub-section (1) of Section 244 to enable the members to apply under Section 241 cannot decide the following issues:- (i) Merit of the case (ii) Issues dependent on merit based on claim and counter claim, such as: a. Whether a prima facie case has been made or not b. Whether the petition is barred by limitation, c. Whether it is a case of arbitration, d. Whether allegation relates to/pertains to another company (Third party). e. Whether the allegations are in the nature of directorial complaint. f. Whether the applicants' conduct disentitled them from seeking relief. g. Whether the proposed application under Section 241 is barred by ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and mismanagement' of the company or its members and/or is frivolous, it will reject the application for 'waiver'. Otherwise, the Tribunal will proceed to notice the other factors. (iii) Whether similar allegation of 'oppression and mismanagement', was earlier made by any other member and stand decided and concluded? (iv) Whether there is an exceptional circumstance made out to grant 'waiver', so as to enable members to file application under Section 241 etc.? 152. The aforesaid factors are not exhaustive. There may be other factors unrelated to the merit of the case which can be taken into consideration by the Tribunal for forming opinion as to whether application merits 'waiver'." 7. In the said appeal taking into consideration th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 8.45 4. Suresh Bharatan (R-6) 7,29,107 7.72 5. Oomen Chackalayil Chacko (R-4) 7,36,608 7.80 6. Ronny George (R-1) 7,35,357 7.79 7. Vadesseri Srinath (R-7) 7,53,882 7.98 8. Relatives 13,07,075 13.84 9. Others / public shareholders 29,12,142 30.84 9. From the aforesaid shareholding pattern we find that all the shareholders have less than 10% of the total shareholding of the company. Their case being covered by this Appellate Tribunal's decision in 'Cyrus Investment Pvt. Ltd. & Anr. Versus Tata Sons Ltd. & Ors.' (Supra), we are no inclined to interfere with the impugned order, where the Tribunal on factual matrix and evidence allowed application under Section 241-242 of the Companies Act. 10. Counsel for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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