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TMI Blog2018 (2) TMI 2009X X X X Extracts X X X X X X X X Extracts X X X X ..... ich provides that in case of the company having a share capital, any member or members holding not less than one-tenth of the issued share capital of the company, shall have a right to apply under section 241 of the Companies Act, 2013, subject to the condition that the applicant or applicants has or have paid all the calls and other sums due on his or their shares. In the application, it has been prayed to waive the abovesaid requirement, in the light of the proviso to section 244(1), which provides that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) or (b) so as to enable members to apply under section 241 of the Companies Act, 2013. 2. The applicant along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 244(1)(a) of the Companies Act, 2013, are as follows: (i) That an investigation has been conducted pertaining to the affairs of the company on the direction of the hon'ble High Court of Kerala. The investigation report has exposed the misdemeanors, illegalities, wrong doings of respondent No. 2 and those who are siding with him. (ii) The second ground taken by the petitioner is that respondent No. 2 is attempting to strengthen his position by allotting to himself shares, by way of private placement which further dilutes the shareholding of the applicant and his wife. 3. Besides the above grounds, the applicant has stated that he and his wife has substantial interest in the company and he is subscriber to the charter documents of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 241 of the Companies Act, 2013. It has further been alleged that the applicant has suppressed the very fact while filing the application and has not come before the Tribunal with clean hands. (b) The second preliminary objection raised by the respondent, is that the applicants cannot invoke the provisions of section 241/242 for reliefs in respect of oppression or mismanagement based on an investigation report, since the scope and effect of a report filed under section 223 of the Companies Act, 2013, is governed of the provisions of Chapter XIV of the Companies Act, 2013. The correct course of action to follow up the investigation is to resort to the provisions of section 224 of the Companies Act, 2013, which provides th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the course of arguments, the allegations levelled by counsel for the respondents against the applicant, have been controverted. Counsel for the applicant referred to the ruling that has been given by the hon'ble National Company Law Appellate Tribunal in Cyrus Investment P. Ltd. v. Tata Sons Ltd., wherein the hon'ble Tribunal under paragraph 91 of its order has stated three factors for consideration of an application for waiver of the requirements of section 244 of the Companies Act, 2013 for filing petition under section 241, which are as follows: "(a) What is the interest of the appellants in the company? Is it insignificant or substantial? (b) What are the issues raised in the petition and whether section 241 is the most ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application and the proposed petition, the applicant has made out a case for grant of the waiver of the requirement under section 244(1)(a) of the Companies Act, 2013. 8. In the light of the above discussion and the legal position stated above, C.A. No. 36 of 2018 is allowed in exercise of the powers conferred under the proviso to sub-section (1) of section 244 of the Companies Act, 2013, by granting the waiver of the requirement under section 244(1)(a) of the Companies Act, 2013, in favour of the applicant. The applicant is permitted to file the petition under section 241 of the Companies Act, 2013. Accordingly, C.A. No. 36 of 2018 stands disposed of. The order is pronounced in the open court today on February 19, 2018 in the presenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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