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TMI Blog2019 (3) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... ot more than 10% and that the Appellant ‘Cyrus Investment Pvt. Ltd.’ has invested about ₹ 1,00,000 Crore in ‘Tata Sons Ltd.’ out of the total investment of ₹ 6,00,000 Crore, held that the Appellant of the said case namely ‘Cyrus Investment Pvt. Ltd.’ has made out an exceptional case to maintain a petition for waiver under Proviso to Sub-section (1) of Section 244 of the Companies Act, 2013. The present case of the 1st Respondent ‘Ronny George’ is not only different but a reversal case where majority of the shareholder have more than 10% of shareholding except two who are less than 10% shareholding. Therefore, it cannot be held that the 1st Respondent has made out a case of exceptional circumstances for grant of waiver to maintain an application under Section 241-242 on such ground. This apart, no exceptional circumstance has been shown by the Tribunal to grant waiver. The factors recorded by NCLT in Para 17 of the impugned order are no grounds to treat them as exceptional circumstances keeping in view our Judgment in the matter of ‘Cyrus Investment Pvt. Ltd. & Anr. Versus Tata Sons Ltd. & Ors.’ (Supra). The impugned order of Tribunal being based on wrong presumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal earlier passed an order on 14th July, 2017 granting waiver in favour of the 1st Respondent. This Appellate Tribunal by its common order dated 5th October, 2017 having noticed that the said order was passed in a mechanical manner without considering any exceptional circumstances set aside the matter and remanded the matter to the Tribunal with following observations: 7. For the reasons aforesaid and as the impugned order(s) are a non-speaking 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 for its decision on the question whether the application for waiver merits consideration after notice and hearing the parties. 8. Both the appeals are allowed with aforesaid observation. No costs. 9. In view of the fact that there is no waiver in favour of the respondents, the question of granting interim relief does not arise. It is after the aforesaid remand, the impugned order has been passed by the Tribunal granting waiver merely referring to the decision of this Appellate Tribunal in Cyrus Investment Pvt. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board's meeting or Extraordinary General Meeting of Company B and takes decisions, which is against the interest of Company A . In such case, any aggrieved member of the Company A can allege oppression and mismanagement qua Company A , if its interest is compromised in favour of another Company B . In such case, it cannot be stated that the matter pertains to another Company B and therefore, member(s) of Company A have no right to allege oppression and mismanagement . In fact, it is a case of oppression and mismanagement qua Company A , if the right of the Company A is compromised. As the aforesaid disputed question is dependent on facts and merit of a case, it cannot be decided nor can be taken into consideration while deciding an application for waiver . (iv) Arbitration: The question of referring a matter under Section 8 or 45 of the Arbitration and Conciliation Act, 1996 does not arise during the stage of decision of an application for waiver . If the Tribunal, after perusal of proposed application under Section 241, without deciding the merit of the case forms opinion that the allegation relates to oppression and mismanagement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide merit of (proposed) application under Section 241, but required to record grounds to suggest that the applicants have made out some exceptional case for waiver of all or of any of the requirements specified in clauses (a) and (b) of sub-section (1) of Section 244. Such opinion required to be formed on the basis of the (proposed) application under Section 241 and to form opinion whether allegation pertains to oppression and mismanagement of the company or its members. The merit cannot be decided till the Tribunal waives the requirement and enable the members to file application under Section 241. 151. Normally, the following factors are required to be noticed by the Tribunal before forming its opinion as to whether the application merits waiver of all or one or other requirement as specified in clauses (a) and (b) of sub-section (1) Section 244:- (i) Whether the applicants are member(s) of the company in question? If the answer is in negative i.e. the applicant(s) are not member(s), the application is to be rejected outright. Otherwise, the Tribunal will look into the next factor. (ii) Whether (proposed) application under Section 241 pertains to oppression an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hareholder but that cannot be held to be an exceptional ground to grant waiver. The shareholding pattern in the 2nd Respondent Company - Professional International Couriers Private Limited as on 31.03.2018 is as follows:- Shareholding Pattern S. No. Shareholder s Name No. of Shares as at 31.03.2018 % of total shares of the company 1. Ahamed Meeran (Appellant) 60,000 13.08 2. Ronny George (R-1) 41,250 8.99 3. P M Abraham (R-3) 51,250 11.17 4. Oomen Chackalayil Chacko (R-4) 51,250 11.17 5. Thomas John (R-5) 51,250 11.17 6. Suresh Bharatan (R-6) 21,250 4.63 7. Vadesseri Srinath (R-7) 62,500 13.62 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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