2018 (3) TMI 1715 - Tri - Companies Law

Requirements for filing petition - waiver of the requirements of clause (a) sub-section (1) of section 244 - applicant/petitioner is a promoter shareholder of the first respondent-company and is holding 7.79 per cent. of the total shareholding of the first respondent-company, which lacks the requisite percentage of shares of 10 per cent - Whether the applicant/petitioner has made out a case for grant of waiver under the proviso to sub-section (1) of section 244 of the Companies Act, 2013? Held that - It is an admitted fact that the respondents have raised the issue that the original application was filed in Form NCLT-I, instead of the format prescribed under rule 83A of the National Company Law Tribunal Rules (Form NCLT-9). The revised application has been filed by making compliance with the National Company Law Tribunal Rules, the content of which are substantially the same, no new cause of action has been pleaded therein. The second objection raised is about the reference to TPCPL, a third company which is falling outside the jurisdiction of this Bench - In order to explain the factual aspects, the applicant/ petitioner has made a reference to the third entity, i.e., TPCPL, which appears to be plausible. Another objection has been raised by the respondents/respondents in their reply that the applicant/petitioner has approached this Bench for purely directorial dispute and no case of oppression is made out. In this connection, it has been submitted by the applicant/petitioner that the charges framed against the applicant/petitioner are malicious, without valid reasons, and alleged grounds relating to his removal, are false. In such circumstances, the acts of the respondents/respondents amount to oppression. There appears force in the submissions of the applicant/petitioner. The factors indicated by the hon ble National Company Law Appellate Tribunal, while deciding the case of Cyrus Investments P. Ltd. v. Tata Sons Ltd. 2017 (9) TMI 1500 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI , are satisfied by the applicant/petitioner - application allowed - the registry is directed to register the petition and list.

Summary

Issues:
- Whether the applicant has made out a case for waiver under section 244(1) of the Companies Act, 2013?

Analysis:
1. The applicant sought waiver of clause (a) of sub-section (1) of section 244 to file a petition under section 241 due to being a promoter shareholder holding 7.79% shares. Allegations of oppressive conduct by respondents 2 to 7 were made without detailed proof, affecting the applicant's rights.

2. The applicant claimed the company's affairs were prejudicial to public interest and members, justifying winding up. Respondents denied all allegations, stating no case for oppression was made, and the removal of the applicant as director was lawful.

3. Respondents argued the applicant failed to follow the prescribed format for the application, and the revised application introduced new pleadings without court leave. They contended the applicant had filed a similar petition against a third company, questioning the jurisdiction of the current Bench.

4. The applicant refuted the allegations, stating the revised application rectified procedural defects without prejudice. The applicant emphasized the acts of oppression and mismanagement, seeking a waiver under section 244(1).

5. The Tribunal noted the dispute over transhipment charges and the removal of the applicant as director. The respondents challenged the revised application's admissibility and the jurisdiction of the Bench based on a petition against a third company.

6. The Tribunal rejected the respondents' objections, finding the applicant's claims of oppression plausible. Citing precedent, the Tribunal determined the matter required further inquiry, as exceptional circumstances warranted waiver of filing requirements under section 244(1).

7. Considering the evidence, the Tribunal found the applicant's membership in the company, oppression claims, and the unique circumstances justified granting the waiver. The civil court's jurisdiction was barred under the Companies Act, directing the registration of the petition based on the factors highlighted in relevant case law.

8. Following the principles set in a similar case, the Tribunal allowed the applicant's plea for waiver under section 244(1), ordering the registration of the petition for further proceedings. The judgment was delivered in open court in the presence of both parties' counsels.