2020 (12) TMI 956 - Tri - Companies Law

Right to apply under section 241 - Seeking for waiver of the applicability of Section 244 of the Companies Act, 2013 - Applicant is even though not a member however is only a Director of the Company - HELD THAT - It is required to be seen that a bare reading of the above provision including under proviso provided under Section 244 of the Companies Act, 2013 waiver can be granted in relation to an application filed only by a Member and not a Director. Even though Learned Senior Counsel for the Applicant presses for certain interim directions, we are not inclined to grant the same unless the Waiver Application is disposed of by this Tribunal after giving an opportunity to the respondents. For this purpose, let notice be issued to the Respondents who have been impleaded in the Application through their respective e-mail by Counsel for the Applicant and the Registry will also issue notice to the Respondents - Post this matter on 16.09.2020.

Summary

Issues:
1. Waiver of the applicability of Section 244 of the Companies Act, 2013 for a Director to maintain a petition before the Tribunal.

Analysis:
The judgment dealt with the issue of whether a Director, who is not a member of the company, can seek waiver of the applicability of Section 244 of the Companies Act, 2013 to maintain a petition before the Tribunal. The Applicant, represented by counsels, argued that despite not being a member, the Director is entitled to maintain the petition based on a previous court decision. The Applicant sought waiver under Section 244 of the Companies Act, 2013. However, the Tribunal noted that Section 244 provides the right to apply under Section 241 only to members of the company, not Directors. The Tribunal emphasized that the waiver can be granted in relation to an application filed only by a Member and not a Director, as per the provisions of the Companies Act, 2013.

Regarding interim directions requested by the Applicant's Senior Counsel, the Tribunal expressed reluctance to grant them until the Waiver Application is disposed of after giving an opportunity to the respondents. The Tribunal ordered that notice be issued to the Respondents impleaded in the Application through their respective e-mail addresses provided by the Applicant's Counsel. The Respondents were given one week to file their response, and the matter was scheduled for further proceedings on 16.09.2020. This procedural step was taken to ensure all parties have an opportunity to present their case before any interim directions are considered, highlighting the importance of due process and fair hearing in legal proceedings.