9911796707
TMI Blog2019 (3) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... aining a petition alleging oppression and mismanagement in the company. 2. Learned counsel appearing on behalf of the Appellant submitted that the 1st Respondent is a minority shareholder of 2nd Respondent Company holding 8.99% shares. According to him the 1st Respondent failed to make out a case of any 'exceptional circumstances' to get the application for waiver allowed in its favour. Further according to him, the impugned order is against the decision of this Appellate Tribunal in 'Cyrus Investment Pvt. Ltd. & Anr. Versus Tata Sons Ltd. & Ors., 2017 SCC OnLine NCLAT 261. 3. Learned counsel appearing on behalf of the 1st Respondent submitted that the Appellant is reagitating the issue on wholly irrelevant ground. According to him, the Tribunal has considered critical facts laid down by this Appellate Tribunal in 'Cyrus Investment Pvt. Ltd. & Anr. Versus Tata Sons Ltd. & Ors.' and after careful consideration and taken into consideration the fact that 1st Respondent is the member of the company and the matter of complaint pertains to oppression and no similar allegations of oppression were made earlier, the waiver was allowed. 4. On hearing the counsel for the parties and perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or '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 which 'oppression and mismanagement' has been alleged. For example, Company 'A' which has substantial shareholding say 50% in another Company 'B', as shareholder and the Company 'A' takes part in the Board's meeting or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 241 is barred by acquiescence or waiver or estoppel." 6. Thereafter Appellate Tribunal proceeded and made following observations:- "150. The Tribunal is not required to decide merit of (proposed) application under Section 241, but required to record grounds to suggest that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oin 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. In the present case, the 1st Respondent tried to argue that he is also a less than 10% shareholder but that cannot be held to be an exceptional ground to grant waiver. The shareholding pattern in the 2nd Respondent Company ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
