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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 ..... (a) and (b) so as to enable the members to apply under Section 241. Thus, it is clear that the Tribunal can waive all or any of the conditions to enable the members to apply under Section 241. Thus, waiver can be granted by the Tribunal only on the application filed by a member or members, but, not by a third party. 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 provides that waiver can be ordered on the application made to the Tribunal by a Member - t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact over exchequer. This application is filed under Section 244(1) of the Act, requesting the Tribunal to waive all requirements thereunder for maintaining the application under Sections 241-242 of the Act. It is stated that the application is filed to safeguard public interest as the three companies taken together had net assets in excess of liabilities of ₹ 51,549 crores as at 31.03.2010 when valued at 31.03.2014 and net worth as per Balance Sheet was ₹ 2814.27 crores as at 31.03.2010. It is further stated that the Respondent No.1 Company sustained huge loss. Respondents No.2 and 4 are its Directors. It is stated that Respondent No.5 is a private trust formed for the benefit of Respondent No.1 and its family. It is 100% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act, 2013 dealing with oppression and mis-management. The applicant has made various allegations against the respondents. The learned counsel appearing for applicants contended that the Tribunal has power to waive the requirements for initiating proceedings under Sections 241 and 242 of the Act. Counsel contended that the petitioner who is a non-member can maintain this application and that the petitioner need not be a member of the Respondent No.1 Company. The contention of the learned counsel appearing for the applicant that the Tribunal can waive all or any of the requirements for initiating action under Section 241 and 242 of the Act. The contention of the learned counsel for the applicant that all conditions including that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, waive all or any of the requirements specified in clause (a) or clause (b) so as to enable the members to apply under section 241. Explanation:- For the purpose 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. (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. Certain conditions are imposed on the members of a Company who can file petition under Section 241 and 242 of the Act having a share capital where not less than 100 members of the Company or not le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he simple reason that waiver can be sought only by a member of the Company and not by a third party. The requirements of clause (a) and (b) can be waived by the Tribunal at the instance of a member and not at the instance of a third party. Admittedly, the applicant is not a member. Therefore, the applicant cannot seek waiver of any of the conditions specified in clauses (a) and (b) of Section 244 (1). The proviso also clearly stipulates that the Tribunal may, on an application made to it in this behalf, waive all or any of the requirements specified in clause (a) and (b) so as to enable the members to apply under Section 241. Thus, it is clear that the Tribunal can waive all or any of the conditions to enable the members to apply under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent No.1 Company is having share capital. The learned counsel has relied on the decision of the Hon ble High Court of Bombay in the case of Bhalchandra Dharmajee Makaji Ors. Vs. Alcock, Ashdown co. Ltd. Ors. He has relied on paras 5 and 6 of the judgment. In this decision the Hon ble High Court has held that In deciding whether the court should wind up a company or change its management the court must take into consideration not only the interest of the shareholders and creditors but also public interest in the shape of the need of the community and the interest of the employees. The learned counsel for the applicant has also relied on the decision of Apex Court reported in 1983 AIR 75 - National Textile Workers Vs. P.R. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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