2021 (6) TMI 904 - AT - Companies Law

Oppression and mismanagement - Petitioner having less than 10% of the issued share capital of the Company - section 244 of the Companies Act - HELD THAT - Based on the statutory provision of Section 241 and 244 of the Companies Act, 2013, it is clear that the Application to the Tribunal for relief in cases of oppression and mismanagement can be filed by any member of the Company who complains that the affairs of the Company are being conducted in a manner prejudicial to the public interest or the manner prejudicial or oppressive to him or any other member or members or the manner prejudicial to the interest of the Company - But the precondition for filing a petition under Section 241 is provided under Section 244 of the Companies Act 2013. It lays down the precondition of filing a Petition that such member has a right to apply under Section 244 for an order under this Chapter. Section 244 (1) (a) of the Act lays down the precondition being that any member or members must hold not less than one-tenth of the total number of its Members, or any member or members must hold not less than 10% of the issued share capital of the Company. Admittedly Petitioner/Respondent No. 1 in this Appeal had filed the Petition under Section 241 of the Companies Act 2013 alleging acts of oppression and mismanagement against the Respondents. However, the Petitioner admits that its shareholding is less than the required 10% eligibility criteria for filing the petition. Therefore, instead of seeking a waiver under proviso to Section 244 (1) of the Companies Act 2013, the Petitioner has sought relief for granting a waiver from the 10% eligibility criteria - The NCLT had the power to grant a waiver from any of the conditions laid down regarding the eligibility criteria for filing the Petition under Section 241 of the Act. But Applicant/Petitioner has to assign a reason; based on that, the NCLT may or may not waive any of the eligibility criteria as laid down under Section 244 of the Act. Admittedly, in this case, notices have been issued without admitting the Petition and even without considering the eligibility criteria for filing a Petition under Section 241 of the Companies Act 2013. Consequently, an Application seeking a waiver from eligibility criteria under proviso to Section 244 (1) of the Companies Act is pending - Appeal disposed off.

Issues:
1. Interpretation of Section 244 of the Companies Act 2013 regarding the eligibility criteria for filing a petition under Section 241.
2. Whether the National Company Law Tribunal erred in admitting a petition that did not meet the shareholding requirements under Section 244.
3. Consideration of waiver of eligibility criteria under proviso to Section 244.

Detailed Analysis:
1. The appeal before the National Company Law Appellate Tribunal stemmed from an order passed by the National Company Law Tribunal, Principal Bench, New Delhi, directing the issuance of notices to respondents based on a company petition. The appellant argued that the impugned order was illegal as it contravened Section 244 of the Companies Act 2013, specifically the shareholding requirement of the petitioner under Section 241. The appellant contended that the petition should have been dismissed due to the petitioner's shareholding being less than 10% of the total issued share capital of the company, a prerequisite for filing a petition under Section 241.

2. The appellant further argued that the company petition lacked the necessary application for waiving the 10% shareholding requirement as mandated by Section 244. The petitioner, despite acknowledging the insufficient shareholding in the petition, did not provide the required pleadings to justify a waiver. The appellant emphasized that the National Company Law Tribunal erred in admitting the petition without ensuring compliance with the legal provisions regarding shareholding eligibility for filing a petition under Section 241.

3. The statutory provisions of Section 244 of the Companies Act 2013 outline the mandatory conditions for filing a petition under Section 241, including the shareholding requirements. The appellant highlighted that the tribunal's decision to entertain the petition and issue notices to respondents disregarded the established legal position regarding the petitioner's lack of eligibility under Section 244. The appellant stressed that the tribunal's actions were contrary to the statutory provisions and sought the dismissal of the petition for being non-maintainable under the law.

4. The appellant underscored the significance of Section 244 in determining the eligibility of members to file a petition under Section 241 for oppression and mismanagement. The section specifies the conditions for maintaining a petition, such as the minimum number of members or the percentage of issued share capital required for filing. The appellant argued that the tribunal's acceptance of the petition without considering the petitioner's failure to meet the shareholding criteria was legally flawed and warranted setting aside the impugned order.

5. The appeal highlighted the petitioner's admission of holding less than the required shareholding percentage for filing a petition under Section 241. Instead of seeking a waiver under the proviso to Section 244, the petitioner directly requested a waiver from the 10% shareholding requirement in the petition. The appellant contended that any waiver of eligibility criteria should be considered only after the petition is admitted, and the petitioner is found eligible to file under Section 241, emphasizing the tribunal's duty to assess compliance with statutory requirements before proceeding.

6. During the proceedings, the respondent/petitioner indicated having filed an application seeking a waiver of the eligibility criteria for filing a petition under Section 241. The appellant expressed no objection to disposing of this application before further proceedings in the case. The appeal concluded with the acknowledgment that notices were issued without admitting the petition or evaluating the eligibility criteria under Section 244, emphasizing the need to address the pending application for waiver before progressing with the case.

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