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TMI Blog2018 (2) TMI 2008X X X X Extracts X X X X X X X X Extracts X X X X ..... f law whether a non-member can seek waiver under Section 244 of the Companies Act, 2013 ('Act' in brief). 2. The Appellant - original Petitioner is admittedly a non-member in Respondent No.1 Company. The Appellant filed application, (treated as) Company Petition 15 of 2017 before the National Company Law Tribunal, Bangluru Bench ('NCLT' in short) for waiver under Section 241 read with Section 244 of the Act. Petitioner claimed it was acting to safeguard public interest. It was claimed that Respondent Companies had merged with Respondent No.1 and in the process assets had been transferred for private benefit. Grounds were raised trying to show that the Respondent companies were acting more for private benefit rather than in public interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in clause (1) or clause (b) so as to enable the members to apply under section 241. Explanation - For the purposes of this sub-section, where any share or shares are held by two or more persons jointly, they shall be counted only as one member." 5. Referring to the above section, it is submitted by the counsel that the proviso clearly provides that all or any of the requirements could be waived. Thus, it is claimed requirement of being member also can be waived. 6. It has been submitted that the Appellant - original Petitioner is NGO and Company registered under Section 8 of the Act. The Appellant takes up social causes in corporate world relating to grievances about mismanagement of the Companies as well as Government Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mally, 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 and mismanagement'? If the Tribunal on perusal of proposed application under Section 241 forms opinion that the application does not relate to 'oppression and mismanagement' of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c interest" was introduced with effect from 01.01.1964 and which is also covered in Section 241(1)(a), should be kept in view and to safeguard public interest even a non-member should be able to maintain the petition. 11. The learned counsel for the Respondents has opposed the contentions raised by the learned counsel for the Appellant. It is claimed that Section 244(1) clearly refers to only members who would be able to apply and maintain the application/petition and there is no ambiguity. According to the counsel for non-members, there are other options like resorting to Section 210 of the Act and the public interest being referred to can be taken care by the Central Government which can take necessary actions. It is argued that sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (b) and does not control what is not part of Clauses (a) and (b). The opening words of the Section are (i) "The following members of a company shall have the right to apply under Section 241, namely: - ..............." Then clauses as mentioned above are there. 13. The Proviso below Clauses 'a' and 'b' does not waive or control the opening words of the Section which clearly say that the right would be of the members to apply. The Proviso also gives rights to only "members" to seek waiver of all or any of the requirements specified in Clauses (a) and (b). Even Section 241 says that any "member of company" can complain under the Section. 14. We thus do not find any substance in the arguments which are being raised by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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