2024 (12) TMI 1249 - AT - Companies Law

Dismissal of company petition filed by the appellant on grounds of maintainability and delay - maintainability of petition filed by the appellant as per Section 244(b) of the Companies Act, 2013 - HELD THAT - The appellant has not filed any record of the company wherein he was shown to be a member of the Respondent No.1 between 2012-2013 till the date he had filed Company Petition in the year 2023. Rather if one peruses the additional affidavit filed by the Respondent herein before the Ld. NCLT one would find at the time of the filing of the Company Petition there were 97 members of the Company, the list of which stood uploaded on the website of the ROC and appears to be the correct list. Thus considering this number of members on the date of filing the petition, the Ld. NCLT held the appellant did not meet the threshold for filing the Company Petition. Considering the fact the appellant was removed in the year 2012 from the list of members in EOGM dated 01.02.2012; such removal having been published in the newspaper; the appellant never took steps to challenge the decision of the EOGM dated 1.2.2012; he never filed any record wherein he could show he was a live member after 2012-13 till 2023, there are no infirmity in the impugned order. There are no force in the arguments of the learned counsel for the appellant that during these years he always believed he was still a member of the Club. Such an argument cannot be believed by any stretch of imagination. The appeal is thus devoid of merit and is accordingly dismissed.

Summary

Issues:
1. Maintainability of the company petition under Section 244(b) of the Companies Act, 2013.
2. Challenge against the impugned order dated 13.05.2024 by the National Company Law Tribunal.
3. Dismissal of the company petition on grounds of delay and maintainability.

Analysis:
1. The appeal was against an order by the National Company Law Tribunal (NCLT) dismissing the company petition due to maintainability and delay issues. The NCLT held the petition was not maintainable under Section 244(b) of the Companies Act, 2013, as the appellant was not a member of the company at the time of filing, having been removed in 2012 without challenging it until 2023, thus beyond limitation.

2. The appellant argued that there were 7 original members at the time of filing, with recognition confirmed by various forums, including the Supreme Court. The appellant and two others had filed consent affidavits, meeting the Section 244 requirements. However, the NCLT dismissed the petition, stating the appellant failed to challenge management decisions or approach the Tribunal within a reasonable period, rendering the petition not maintainable.

3. The appellant referred to additional affidavits and lists of members to show his membership status. The respondent relied on an EOGM held in 2012 where the appellant was expelled, supported by public notices. The NCLT found no record of the appellant's membership post-2012, with the correct member count being 97 at the time of filing, thus upholding the dismissal. The appellant's argument of believing he was still a member was rejected, leading to the dismissal of the appeal for lack of merit.

Conclusion:
The NCLAT upheld the NCLT's decision to dismiss the company petition, citing non-maintainability under Section 244(b) of the Companies Act, 2013, due to the appellant's removal in 2012 and lack of challenge until 2023. The appellant's arguments regarding membership status and belief were deemed unconvincing, leading to the dismissal of the appeal.