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TMI Blog2018 (9) TMI 1837X X X X Extracts X X X X X X X X Extracts X X X X ..... e main contention of the petitioner in the main company petition is that his shareholding of 25 per cent. had been reduced to "nil" due to the oppressive act of the respondents as well as other allegations against the respondents made in the main company petition. In view of the reduction of his shareholding strength from 25 per cent. to nil percentage in the first respondent-company, this application it is stated has been filed under section 244 of the Companies Act, 2013, seeking to waive the eligibility requirement under section 244(1)(a) and (b) of the Companies Act, 2013 in terms of the proviso contained therein for filing the petition under section 241 of the Companies Act, 2013 and to pass any other order as this Tribunal may deem fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a member of the first respondent-company however without his knowledge, the third respondent has managed to increase the shareholding strength of respondent No. 2 from 5,000 shares to 4,20,000 shares and has also issued fresh shares of 3,40,000 Nos. to the mother of the petitioner arrayed as respondent No. 4 in the main company petition. By virtue of the above allotments made without the knowledge of the petitioner his shareholding strength has been brought down from 25 per cent. to 0.33 per cent. and the petitioner avers in the application that one of the reliefs sought for in the main company petition is to set aside these allotments done based on fabrication and forgery. As already stated the shareholding strength of 0.33 per cent. has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces he cannot be considered as a member as defined under section 2(55) of the Companies Act, 2013. Further, the respondents have sought to rely on the judgment of the hon'ble National Company Law Appellate Tribunal delivered in Company Appeals Nos. 133 and 139 of 2017 in the matter of Cyrus Investments P. Ltd. v. Tata Sons Ltd. [2019] 212 Comp Cas 269 (NCLAT) and particularly the factors which are required to be noticed by this Tribunal in order to consider the application for waiver. 5. It is further contended in the reply of respondent No. 3 that the transfer of shareholding of the petitioner took place in the year 2014 itself and the petitioner being part of the Board since incorporation was well aware of the share transfer and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved nor any notice of the board meeting has also been given in relation to the alleged and illegal allotment or illegal transfer of shares and taking into consideration all these aspects the petitioner reiterates that the application should be allowed in order to enable the Tribunal to consider the main company petition itself on merits. 7. At the time of oral submissions, learned counsel appearing for the applicant/petitioner apart from reiterating what has been stated in the application as well as in the rejoinder, seeks to rely on the decision of the hon'ble High Court of Karnataka at Bangalore dated August 12, 2009 rendered in the matter of Vijayan Rajes v. MSP Plantations P. Ltd. [2009] 151 Comp Cas 413 (Karn), wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had been filed by the respondents. However from a perusal of the reply and documents filed along with the reply it is seen that a contention has been taken by the respondents at paragraph No. 4 of the reply, which is to the following effect : .....Each and every board meeting of the company has been duly notified to all the stake holders and each and every act regarding the affairs of the company has been done with the consent and in the presence of the petitioner. Moreover since the shareholding has been increased in favour of respondent numbers 2 and 4 who are the par ents of the petitioner as well as the respondent ; number 3, there was absolutely no objection to the petitioner with regard to the increase in the shareholding. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fall below the threshold limit of 10 per cent. as well as to make him as a non-member, if the acts of the respondents can be sustained of the first respondent-company. 10. In the circumstances, we are of the considered view that in the absence of any proof, the petitioner cannot be shut out under section 244 of the Companies Act, 2013 on mere statements of the respondents without any shred of evidence being produced to deny an opportunity to the petitioner to prosecute the main company petition. Further, it is also required to be seen that respondent No. 3 has not contended that the petitioner has never been a shareholder of the first respondent-company or that he has been all along holding shares since incorporation only below the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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