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TMI Blog2018 (3) TMI 1715X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (a) sub-section (1) of section 244 on the ground that the applicant/petitioner is a promoter shareholder of the first respondent-company and is holding 7.79 per cent. of the total shareholding of the first respondent-company, which lacks the requisite percentage of shares of 10 per cent. as stipulated under clause (a) of sub-section (1) of section 244 of the Companies Act, 2013, for filing petition under section 241 of the Act. 2. The applicant/petitioner has submitted that respondents Nos. 2 to 7 are attempting to remove the petitioner from the directorship of the first respondent-company, viz., M/s. Professional Courier Network Ltd., the same is being done by raising frivolous and mischievous allegations without any detailed proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been mentioned hereinabove. 5. The first respondent-company has filed a common counter statement on its behalf and on behalf of respondents Nos. 2 to 7 denying all the allegations made in the application as well as in the proposed company petition to be filed under section 241 of the Companies Act, 2013. The answering respondents/respondents have specifically stated that the applicant/petitioner has not made out any case for oppression and mismanagement or shown exceptional reasons for grant of waiver of requirements stipulated in section 244(1)(a) and prayed that the application be dismissed. 6. It has been averred in the reply that the applicant/petitioner ought to have filed the present application as per the format prescribed in rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stated that the applicant/ petitioner is put to strict proof of the same. But, it is worthwhile to record that under paragraph 18.3 of the common counter, it has been mentioned that the members of the first respondent-company at its extraordinary general meeting held on July 15, 2017 have removed the applicant/petitioner as director of the first respondent-company, which appears to be contradictory to the averments made under paragraph 18 of the counter filed by the answering respondents. 8. Under paragraph 20 of the common counter filed by the respondents/ respondents, it has been mentioned that there is no question of any dispute over "transhipment charges" as is being made out in the application. Under paragraph 21 of the common co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Bench was required as the same has not caused any prejudice to the respondents/respondents. 11. The applicant/petitioner has also submitted that while filing the reply, the answering respondents have not addressed the acts of oppression and mismanagement which have been specifically raised against them and he has made out prima facie case for grant of waiver under proviso to sub-section (1) of section 244 of the Companies Act, 2013. 12. In the light of summary of the pleadings recorded hereinabove, the issue that can be framed is as follows : Whether the applicant/petitioner has made out a case for grant of waiver under the proviso to sub-section (1) of section 244 of the Companies Act, 2013 ? 13. In order to arrive at findings on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents/respondents in their reply have not even admitted that the real issue was pertaining to the payment of transhipment charges to the applicant/petitioner. The arguments of the respondents are two in fold ; first, that the revised application filed by the applicant/petitioner cannot be taken on record without the leave of the court, and the second issue raised is that the pleadings as contained in the application and the proposed petition are pertaining to a third company with respect to which the applicant/ petitioner has already filed C. P. No. 355 of 2017 before the National Company Law Tribunal, Bombay, and based on the allegations against third company, i.e., TPCPL, the applicant/petitioner cannot invoke the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the third entity, i.e., TPCPL, which appears to be plausible. 16. Another objection has been raised by the respondents/respondents in their reply that the applicant/petitioner has approached this Bench for purely directorial dispute and no case of oppression is made out. In this connection, it has been submitted by the applicant/petitioner that the charges framed against the applicant/petitioner are malicious, without valid reasons, and alleged grounds relating to his removal, are false. In such circumstances, the acts of the respondents/respondents amount to oppression. There appears force in the submissions of the applicant/petitioner. In Mohmad Rafiq Jafferbhai Bagwan v. Sathya Prakash Subramanian reported in [2013] 117 CLA 227 (CLB ..... X X X X Extracts X X X X X X X X Extracts X X X X
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