2018 (2) TMI 2009 - Tri - Companies Law

Waiver of the requirement of section 244(1)(a) of Companies Act - applicant along with his wife is holding 8.84 per cent, of the total paid-up capital of the first respondent-company, therefore is not fulfilling the requirement under section 244(1)(a) of the Companies Act, 2013, for filing petition under section 241 - HELD THAT - The respondents in their reply has not established the fact that the application/proposed company petition is an act of malice and/or intended to achieve an oblique purpose or the applicant is ex facie estopped from complaining of the matter on account of acquiescence. Moreover, it is worthwhile to mention that the hon'ble National Company Law Appellate Tribunal in the above referred case has laid down under paragraph 145 of its order that the Tribunal cannot deliberate on the merits of proposed petition under section 241, while deciding an application for waiver under the proviso to sub-section (1) of section 244. This Tribunal is not supposed to discuss the merits of the proposed petition. However, on perusal of the contents of the application and the proposed petition, the applicant has made out a case for grant of the waiver of the requirement under section 244(1)(a) of the Companies Act, 2013. Appeal allowed in exercise of the powers conferred under the proviso to sub-section (1) of section 244 of the Companies Act, 2013, by granting the waiver of the requirement under section 244(1)(a) of the Companies Act, 2013, in favour of the applicant.

Summary

Issues:
- Seeking waiver of the requirement of section 244(1)(a) of the Companies Act, 2013 for filing a petition under section 241.
- Allegations of oppression and mismanagement against respondents.
- Denial of allegations and raising preliminary objections by respondents.
- Consideration of waiver application based on legal principles and previous judgments.

Analysis:
1. Waiver of Section 244(1)(a) Requirement:
The applicant sought waiver of the requirement under section 244(1)(a) of the Companies Act, 2013 to file a petition under section 241. The applicant, along with his wife, held 8.84% of the total paid-up capital of the respondent-company, falling short of the one-tenth requirement. The applicant alleged mismanagement and oppression by respondents 2 to 4, leading to the need for the waiver. The Tribunal considered the proviso to section 244(1), allowing for waiver of requirements, and granted the waiver to the applicant to file the petition under section 241.

2. Allegations of Oppression and Mismanagement:
The applicant accused respondent No. 2 of conducting the company's affairs for personal gain, resulting in unjust enrichment for a few shareholders at the expense of the applicant. Respondents 3 and 4 were implicated for colluding with respondent No. 2 in oppressive activities. The applicant highlighted the failure of the board of directors to act in good faith and in the interest of the company, justifying the need for relief under section 241. The Tribunal acknowledged the grounds presented by the applicant as valid for seeking the waiver.

3. Respondents' Denial and Preliminary Objections:
The respondents denied all allegations of oppression and mismanagement, contending that the applicant failed to establish a case for the waiver. They raised preliminary objections, including the applicant's previous filing with the Company Law Board and the scope of invoking sections 241/242 based on an investigation report. The respondents argued against the grant of waiver, emphasizing the legal procedures to follow post-investigation as per the Companies Act, 2013.

4. Consideration of Waiver Application and Legal Principles:
During arguments, the applicant's counsel referenced a previous judgment by the National Company Law Appellate Tribunal, outlining factors for considering a waiver application under section 244. The Tribunal noted that the waiver decision should not delve into the merits of the proposed petition under section 241 but focus on the applicant's case for granting the waiver. By analyzing the facts presented in the application and proposed petition, the Tribunal found merit in granting the waiver under section 244(1)(a) of the Companies Act, 2013.

In conclusion, the Tribunal allowed the waiver application, exercising powers under the proviso to section 244(1) of the Companies Act, 2013. The applicant was permitted to file the petition under section 241, and the case was disposed of accordingly on February 19, 2018. The judgment emphasized the importance of considering the applicant's case for relief while refraining from discussing the merits of the proposed petition under section 241 during the waiver decision.