TMI Blog2019 (6) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company exceeded 10. Admittedly, the parties belong to one family. Respondent No.1 and Appellant No.1 are brothers while Appellant No. 3 and 4 are their parents. It is not disputed by the Appellants that both brothers i.e. Respondent No.1 and Appellant No.1 held 25% shareholding each in the Company while their father Appellant No. 3 held 50% shareholding. Whether the shareholding of parents stated to have been increased between year 2009 to 2011, the substantial hike resulting in reduction of shareholding of Respondent No. 1 to 0.33% was an act of manipulation on the part of Appellant No.1 or had been done with the consent and approval of Respondent No.1 who too was the Director of the Company, is the core issue in the Company Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as Act ) for prosecuting the main Company Petition filed under Section 241 of the Act alleging acts of oppression and mismanagement against Respondents therein who figure as Appellants No. 1 to 3 in this appeal. On consideration of the matter, the Tribunal was of the view that the status of Respondent No. 1 as shareholder holding shares above the threshold limit not being disputed by the Appellants and evidence in relation to share allotment and share transfer not being produced by the Appellants, grant of waiver of requirement postulated under Section 244 of the Act was warranted. Aggrieved thereof the Appellants including those arrayed as Respondents 1 to 3 in the application before the Tribunal preferred the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transfer of shares being illegal is liable to be set aside as all actions had been done behind his back by forging and fabricating the documents which have been suppressed. Respondent No. 1 has depended the impugned order contending that the Appellant No. 1, being an elder brother, was looking after the accounting and secretarial records and Respondent No. 1 had immense faith in him but Appellant No.1 skillfully managed to transfer the shareholding of Respondent No. 1 by forging and fabricating the documents, in gross breach of trust which construed oppression as against Respondent No.1. Thus, it is submitted, this was a fit case for grant of waiver. 4. Heard learned counsel for the parties and perused the record. The cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him eligible to prosecute the main Company Petition. Appellants herein who figured as Respondents before the Tribunal contested the application on the ground that since Respondent No.1 presently held Zero percent of the share capital of the Company, as such, he could not be considered as a member. Reliance has been placed on judgment of this Appellate Tribunal rendered in Cyrus Investments Pvt. Ltd. Anr. Vs. Tata Sons Ltd. Ors. (supra) to press the argument that the Respondent No.1 currently not being a member of the Company, the application seeking waiver was to be outrightly rejected. 5. We have given our anxious consideration to the arguments advanced at the Bar. In the wake of allegations of oppression of Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e core issue in the Company Petition, which, alongwith other contentions raised may or may not establish oppression as alleged by Respondent No.1. In the absence of relevant record, being withheld and explanation for such withholding not being found plausible and convincing, Respondent No.1 cannot be held as having been divested of the status of a member of the Company for limited purpose of waivement of the requirement as specified in Section 244(1)(a) of the Act. The judgment relied upon by the Appellants does not squarely apply in the facts and circumstances of the instant case. We are convinced that refusal to grant waiver would amount to adopting of a blood thirsty approach to a case where relief is sought on the allegations of opp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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