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TMI Blog2017 (9) TMI 1951X X X X Extracts X X X X X X X X Extracts X X X X ..... Act" for waiver of the requirement in respect of right to apply to the Tribunal under Section 241 of the Act. One Shri P. Sadanand Goud, S/o Shri Panjala Bikshapathi Goud, in a sworn affidavit has stated that he is consultant and advisor of the applicant company and he was also authorised by the Board which passed a resolution dated 01.06.2015 to act on behalf of the applicant company and to file this application. It is stated in the affidavit that the applicant is a Company registered under Section 25 of Companies Act, 1956 having its registered office at Chennai. One of the functions undertaken by the applicant company is to focus on mis-governance in the private and corporate sector, especially where interests to a large extent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ger was effected with fraud. There was no consideration to transfer of assets paid by Respondent No.1 for acquiring Rs. 31,342 crores of assets. It is stated that Respondent No.1 Company is a loss making company and that it is being run with the funds transferred from the three companies. The transfer of assets worth Rs. 13,602 crores belonging to the three companies to a private trust is against public interest. Thus, provisions of Section 241 (1) (a) and (b) are attracted. It is stated that the matters complained are very serious in nature and if waiver is not granted, then, no person can move the Tribunal. Therefore, this application is filed to grant waiver to enable the applicant to file petition under Section 241-242 of Companies Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .:- 244. (1) The following members of a company shall have the right to apply under section 241, namely:- (a) in the case of a company having a share capital, not less than one hundred members of the company or not less than one-tenth of the total number of its members, whichever is less, or any member or members holding not less than one-tenth of the issued share capital of the company, subject to the condition that the applicant or applicants has or have paid all calls and other sums due on his or their shares; (b) in the case of a company not having a share capital, not less than onefifth of the total numbers of its members: Provided that the Tribunal may, on an application made to it in this behalf, waive all or any of the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 (1) (a) of the Act on the ground that waiving of all conditions would arise only in the case of non-members. In other words, the contention of the learned counsel is that when the conditionisn clause (a) and (b) of Section 244 (1) of the Act provide that all the conditions can be waived by the Tribunal, then the applicant need not be a member. The contention of the counsel that the members have to satisfy the conditions in clause (a) and (b) of Section 244 (1) of the Act. However, if all the conditions are to be waived which power is given under the proviso, then a third party can seek waiver of all conditions. The contention of the learned counsel for the applicant cannot be accepted for the simple reason that waiver can be sought only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only mean that the waiver is for a non-member. The contention of the learned counsel that NCLT, Chennai Bench, has passed an order dated 18.11.2016 in CA NO.12/2016 in CP No.02/2016 waiving all requirements to an applicant who is not a member. The learned counsel for the applicant has cited several other decisions apart from the decision of NCLT, Chennai bench. The question is whether the decisions are applicable to the facts of this case. We have gone through the order of NCLT Chennai Bench. This is a case relating to Church of South India Trust Association where, there is no involvement of share capital. The said decision has no application to the facts of this case as the Respondent No.1 Company is having share capital. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from the facts of this case. This decision has no application to the facts of this case. The learned counsel for the applicant has further relied on the decision of the Apex Court reported in 1960 AIR 936 - Mahadeolal Kanodia Vs. The Administrator-General & Ors. The learned counsel has relied on this decision for interpretation of statute. The decision is clearly not applicable to the facts of this case. A plain reading of Section 244(1) of Companies Act, 2013 provides that members of a company have a right to apply under Section 241 of the Act. The very opening of Section 244 provides that members of a company have a right to apply under Section 241. A non-member, therefore, cannot apply for waiver under Section 244. The proviso also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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