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TMI Blog2017 (11) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... eard together and disposed of by this common judgment. 2. In Company Appeal (AT) No. 257 of 2017, the appellant has challenged the order dated 14th July, 2017 passed by National Company Law Tribunal (hereinafter referred to as "Tribunal") Chennai Bench, Chennai in CA No. 122/2017 whereby and whereunder the Tribunal granted 'waiver' under proviso to sub-section (1) of Section 244 of the Companies Act, 2013 and passed the following order: - "Counsel for Petitioner present. Counsel for R2 present. Counsel for Applicant prayed for waiver of the requirements under section 244 of the Companies Act for the purpose of filing Petition under section 241(1). We have heard both the sides. The Petitioner made out the case for grant of waiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M on 15th July 2017 and may pass the resolution on the agenda proposed. However, the 1st Respondent Company is restrained from giving effect to the resolution passed till further order. Counsel for Respondent is directed to file the interim counter within ten days to the application and the Company Petition. Put up on 27.07.2017 at 10:30A.M." 4. We have heard learned counsel for the appellant and learned counsel for the respondents. 5. Apart from the fact that both the impugned orders have been passed in a mechanical manner by the Tribunal without considering any exceptional circumstances to allow the application for 'waiver' under proviso to sub-section (1) of Section 244, the Tribunal has not applied its mind as to whether (pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has passed such order. To form an opinion as to whether the application merits waiver, the Tribunal is not only required to form its opinion objectively, but also required to satisfy itself on the basis of pleadings/evidence on record as to whether the proposed application under Section 241 merits consideration. 149. The Tribunal is required to take into consideration the relevant facts and evidence, as pleaded in the application for waiver and (proposed) application under Section 241 and required to record reasons reflecting its satisfaction. 150. The Tribunal is not required to decide merit of (proposed) application under Section 241, but required to record grounds to suggest that the applicants have made out some exceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , was earlier made by any other member and stand decided and concluded? (iv) Whether there is an exceptional circumstance made out to grant 'waiver', so as to enable members to file application under Section 241 etc.? 152. The aforesaid factors are not exhaustive. There may be other factors unrelated to the merit of the case which can be taken into consideration by the Tribunal for forming opinion as to whether application merits 'waiver'." 7. For the reasons aforesaid and as the impugned order(s) are a nonspeaking order, we have no option but to set aside the impugned orders both dated 14th July, 2017 passed in CA No. 121/2017 and CA No. 122/2017 and they are set aside. Both the cases are remitted to the Tribunal fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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