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TMI Blog2021 (6) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the interest of the Company - But the precondition for filing a petition under Section 241 is provided under Section 244 of the Companies Act 2013. It lays down the precondition of filing a Petition that such member has a right to apply under Section 244 for an order under this Chapter. Section 244 (1) (a) of the Act lays down the precondition being that any member or members must hold not less than one-tenth of the total number of its Members, or any member or members must hold not less than 10% of the issued share capital of the Company. Admittedly Petitioner/Respondent No. 1 in this Appeal had filed the Petition under Section 241 of the Companies Act 2013 alleging acts of oppression and mismanagement against the Respondents. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oj Kumar Garga, Advocate for R-2. Mr. Manoj Khanna and Mr. Rajat Bhatia, Advocates for R-1. ORDER ( Through Virtual Mode ) Heard the arguments of learned Sr Counsel Mr Ramesh Singh for the Appellant, Mr Manoj Khanna, for Respondent No. 1, Mr Manoj Kumar Garg for Respondent No. 2 and M/s Manmeet Arora for Respondent No 4. 2. Present Appeal emanates from the order dated 4 June 2021 passed by National Company Law Tribunal, Principal Bench, New Delhi in CP No.90/241/242/PB/2021, whereby the National Company Law Tribunal has directed the registry as well as the Applicant to issue notice to the other Respondents. 3. The Appeal is filed on the ground that impugned order is expressly illegal being in teeth of express provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further pertinent to note that nowhere in the Petition has Respondent No. 1 made a single averment concerning waiver of the essential requirement of 10% shareholding since Respondent No. 1 is very well aware of the fact and even admitted by Respondent No. 1 in its Petition that this essentiality of 10% shareholding has not been met in accordance with the law. Therefore, the NCLT ought to have restrained from issuing notice vide the impugned order dated 4th June 2021 on account of ineligibility of the Respondent/Petitioner in filing a Petition under Section 241 of the Companies Act. 7. The Appellant further contends that Respondent No. 1, even though not representing 1/10th of the total Members of the Appellant Company neither holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 241 of the Act are contained in Section 244 (1) (a) of the Act and are reproduced below for ready reference; 241 Application to Tribunal for relief in cases of oppression, etc.(1) Any member of a company who complains that- (a) the affairs of the company have been or are being conducted in a manner prejudicial to public interest or in a manner prejudicial or oppressive to him or any other member or members or in a manner prejudicial to the interests of the company; or (b) the material change, not being a change brought about by, or in the interests of, any creditors, including debenture-holders or any class of shareholders of the company, has taken place in the management or control of the company, whether by an alteration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be counted only as one member. (2) Where any members of a company are entitled to make an application under sub-section (1), any one or more of them having obtained the consent in writing of the rest, may make the application on behalf and for the benefit of all of them. Corresponding Law: S. 399 of Act 1 of 1956. Section 244 enforced w.e.f. 1-6-2016 Section 244. Right to apply under Section 241 11. Based on the statutory provision of Section 241 and 244 of the Companies Act, 2013, it is clear that the Application to the Tribunal for relief in cases of oppression and mismanagement can be filed by any member of the Company who complains that the affairs of the Company are being conducted in a manner prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposal of this petition restrain the respondent number 1 from calling an EGM on 2 June 2021. (b) Waive the requirement of 10% shareholding for filing the petition. (c) ****** 16. Admittedly Petitioner/Respondent No. 1 in this Appeal had filed the Petition under Section 241 of the Companies Act 2013 alleging acts of oppression and mismanagement against the Respondents. However, the Petitioner admits that its shareholding is less than the required 10% eligibility criteria for filing the petition. Therefore, instead of seeking a waiver under proviso to Section 244 (1) of the Companies Act 2013, the Petitioner has sought relief for granting a waiver from the 10% eligibility criteria. The question of granting relief may arise on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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