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TMI Blog2019 (2) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... rus Investment Pvt. Ltd. & Anr. Versus Tata Sons Ltd. & Ors.’ [2018 (7) TMI 1397 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI], we are not inclined to interfere with the impugned order, where the Tribunal on factual matrix and evidence allowed application under Section 241-242 of the Companies Act. Appeal dismissed. - Company Appeal (AT) No. 161 of 2018 - - - Dated:- 2-11-2018 - Sudhansu Jyoti Mukhopadhaya J. (Chairperson) And A. I. S. Cheema J. (Judicial Member) For the Appellant : Mr. Rana Mukherjee, Sr. Advocate with Mr. Goutham Shivshankar and Mr. Shantanu Singh, Advocates. For the Respondents : Mr. Anirudh Wadhwa And Mr. Bhargav R. Thali, Advocates, Mr. Prasanna S., Advocate ORDER The Appellant has filed this appeal against the order dated 14th March, 2018 passed by National Company Law Tribunal, Single Bench Chennai in CA/121/2017, whereby and whereunder the application for waiver filed by the Respondent under Proviso to Sub-section (1) of Section 244 of the Companies Act, 2013 has been allowed. 2. At this stage, it is desirable to notice that earlier the Tribunal allowed the petition for Waiver but the order being not a reasoned order, the order was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 241. As it is dependent on merit of the case, we are of the view that the Tribunal cannot decide the question as to whether a prima facie case has been made out or not while deciding an application for waiver . (ii) Limitation: The question whether an application under Section 241 is barred by limitation is a mixed question of law and facts. The same is also dependent on the cause of action and continuous cause of action, if any. As the merit of the case cannot be deliberated in an application for waiver the Tribunal cannot decide the question whether (proposed) application under Section 241 is barred by limitation or not while deciding the application for waiver . (iii) Allegation pertains to affairs of another Company This is a complicated issue dependent on facts of each case. The allegation of oppression and mismanagement pertains to the related company or a third company is dependent on the facts of the case. For example, on bare perusal of the application, if it appears that the allegation relates to a third company then it is a different issue, but in some cases even third company's issue may have direct relation to the company of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for waiver . (vii) Acquiescence/Waiver/Estoppel The question whether (proposed) application under Section 241 is barred by acquiescence or waiver or estoppel is question of fact which can be decided only at the stage of hearing of application under Section 241. Therefore, we are of the view that such question cannot be decided by Tribunal while considering an application for waiver . 145. For the aforesaid reasons we hold that the Tribunal while deciding an application for waiver under proviso to sub-section (1) of Section 244 to enable the members to apply under Section 241 cannot decide the following issues:- (i) Merit of the case (ii) Issues dependent on merit based on claim and counter claim, such as: a. Whether a prima facie case has been made or not b. Whether the petition is barred by limitation, c. Whether it is a case of arbitration, d. Whether allegation relates to/pertains to another company (Third party). e. Whether the allegations are in the nature of directorial complaint. f. Whether the applicants' conduct disentitled them from seeking relief. g. Whether the proposed application under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... context of present case, except that the minority shareholders join together, i.e. either six in numbers or such numbers of members whose joint shareholding will come up to 10% of the issued share capital of the Company, which will be also not less than 3 to 4 members, none of the 49 shareholders can file an application under Section 241 alleging oppression and mismanagement . It will remain only in the hands of major shareholders, namely Mr. Ratan Naval Tata or Mr. Narotam S. Sekhsaria, who only have right and their prerogative to file such application. 162. One or the other minority shareholder cannot be asked or directed to form a group of 10% of the member(s) that means six person(s) in the present case, as it will be dependent on the prerogative of the other member(s). 163. We are of the view that this is one of the exceptional and compelling circumstances, which merit the application for waiver subject to the question whether (proposed) application under Section 241 relates to oppression and mismanagement . 8. The shareholding pattern in the present appeal is as shown below and is not in dispute. Shareholding Pattern in PCNL as on 31.03.2018. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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