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TMI Blog2017 (11) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. Therefore, the sole petitioner who filed CP is not at all eligible to file this petition. Whether interveners can be permitted to implead as petitioners? - Held that:- It is settled law that petitioner must have the consent of the required members or the members having required percentage of shareholding as on the date of the filing of the petition and it must be there by the date the petition was filed. Subsequent consent by other members or subsequent adding of other members do not fulfil the eligibility criteria laid down in section 399 of the Companies Act, 1956. Therefore, application made by the interveners to implead themselves as petitioners and make the petitioner eligible to file petition under section 397 is nothin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the original petitioner being one in number is not eligible to file this Company Petition under section 399 of the Companies Act, 1956. It is the case of the original petitioner that as Director of the first respondent company he has got right under section 397 and 398 of the Companies Act, 1956 to file this petition before The National Company Law Tribunal. In support of contention of original petitioner, he relied upon decision in K.N. Bhargava v. Trackparts of India Ltd.[2000] 23 SCL 320 (CLB - New Delhi) and Bajrang Jalan v. Mahabir Prasad Jalan AIR 1999 Cal 156. 04. Another contention of original petitioner is that although petition is filed under Section 241 and 242 of the Companies Act, 2013, the Company Law Board admitted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not been issued share certificates. According to the interveners there are seven members in the first respondent company since inception and the interveners together with petitioners become three members and all the three members forms nearly 42% of the members in the company and, therefore, they are qualified to file this petition. 06. Objection of the original respondents in the intervening application is that the application has been made without proper power of attorney and the power of attorney filed with the application has been obtained after signing of the petition. It is also stated that there is no provision in CPC permitting the interveners to file this petition and they themselves got added as petitioners. It is the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in deciding the controversy in the decision. In the second decision it has nothing to do with the facts of this case. Therefore, original petitioner is not eligible to file TP 119 of 2016 (Old No. 23 of 2015) under Section 399 of the Companies Act, 1956. There is no provision in the Companies Act 1956 which enables original petitioner to seek waiver of the eligibility criteria to file an application under section 397 and 398 of the Companies Act. 08. Objection of the original respondents that the original petition filed under section 241 and CRPC even before they came into force is not a valid petition, do not merit acceptance for the simple reason that the Company Petition has been admitted under Section 397 and 398 by the Company L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eners to implead themselves as petitioners and make the petitioner eligible to file petition under section 397 is nothing but an afterthought. If, really the interveners have got any cause to file a case of oppression and mismanagement, they would have joined hands with the petitioner before filing this petition. 12. It is settled law that a proper and necessary party can be added as party to the pending proceedings. On this aspect, intervening petitioner relied upon the decision in C.M.V. Krishnamachari v. M.D. Dhanlakshmi Ammal [1966] 2 MLJ 298 and decision of Hon'ble NCLT, Kolkatta Bench in Durga Ray v. T.D. Kumar and Bros. Ltd. And others. In the judgement of NCLT, Kolkatta bench the question involved is whether legal representat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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