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TMI Blog2023 (2) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 2013, where even a Shareholder is treated as a Member. In the instant case, apart from not being a party to the main Petition, the Appellant herein is, admittedly, only a Member of the Church and he has not filed any documentary evidence to substantiate that any of the requirements under Section 2(55) of the Companies Act, 2013, is met. Admittedly, there is a four layered Election Process to become a Member of the Company. The persons acting as Member of CSITA are in fact first elected by various Parishes falling under more than 20 Dioceses and these Parishes Member elect people to the Diocesan Council and also to the Synod Council who in turn elect the process of the Company - This Tribunal is of the earnest view that merely because a person is a Member of Church, he does not have the locus standi to file a Petition under Sections 241 242 of the Companies Act, 2013, against a Section 8 Company of which, he is admittedly, not a Member. As the Petitioner in application, does not satisfy any of the requirements stipulated under Section 2(55) of the Companies Act, 2013, he cannot seek any exemption under Section 244 of the Companies Act, 2013 - A brief p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in January, 2014 and the same lapsed on 13.01.2016. Subsequently, the Synod was not conducted and no election to the Company Membership was held. In this backdrop, I.A.12/2016 was preferred by CSITA on the ground that the Petitioner did not fulfill the requirements laid down under Section 244 to file the Company Petition under Section 241 of the Companies Act, 2013. 5. It is submitted that NCLT vide Order dated 18.11.2016 has held the Company Petition to be maintainable and also observed that there was an urgent need to regulate the affairs of CSITA and proceeded to remove the Directors and Managing Committee including office bearers by appointing Hon ble Justice Sh. K. Sampath (Retd.) as Chairman who is authorized to nominate four suitable persons to be chosen from the sub-units Dioceses of three office bearers challenging this Order , the Respondent filed CRP No.3739/2016 before the Hon ble High Court of Madras and an Interim Order was passed on 28.11.2016 staying the Operation of para 18 in CA No.12/2016. CRP No.3739/2016 was finally dismissed on 22.11.2018 by a Division Bench of Hon ble High Court of Madras, giving liberty to move before NCLAT. 6. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide who the member is and who the member is not. Merely because membership is on rotation it cannot be said that anybody could be treated as member of the company. Section 241 petition itself is representative in character, it cannot be further be made open to make a non member to canvass the assumed cause as a cause of action of a member of the company. 62. In this perspective, for this Bench in the earlier order dated 18.11.2016 having categorically mentioned that the discussion in that order will not have any bearing on the merit of the case and having left it open to decide it at the final hearing, we are of the considered opinion that the assumed prima facie view will not have any bearing over this order for two reasons; one - an interim order always merges with the final order and two - as to maintainability, since order dated 18.11.2016 has left it open to be decided at the time of final hearing, it cannot be called as resjudicata against this order. 63. Prima facie view of consideration will come into operation when the petition under consideration is indicative of likelihood of getting a decree in favor of it unless and until that seemingly insurmountable mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no locus standi in filing the Petition as he is not a Member of the Section 8 Company but is only a Member of the unregistered Church of South India. In this Appeal also, it is submitted that the Appellant cannot be a Member unless he is elected by the Synods . He also drew our attention to paras 41, 49 56 of the 'Impugned Order', which reads as follow: 41. Since this issue is limited to examining as to whether a non-member can file Petition u/s 241 of the Act, unless it is self evident that petitioner is a member of the company, this petition shall not be extrapolated to say that since complexities are involved in this case, the prerequisite of being a member can be done away. 49. Qualification given one to ten cannot be read as qualification zero to ten. Here this person is a non-member; a member u/s. 241 cannot be read as non-member just because an application could be allowed even a short fall is there to the qualification u/s. 244 of the Companies Act, 2013. However, this Bench ordered that the CP is maintainable owing to some complexities, therefore, it has been left open to decide this issue at the time of final hearing. 56. One ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deemed to have agreed to become Member of the Company , and on its registration shall be entered as Member in its Register of Members; (ii) Every other person who agrees in writing to become a Member of the Company and whose name is entered in the Register of Members of the Company; (iii) Every person holding shares of the Company and whose name is entered as a beneficial owner in the records of a depository; As per the definition, a person cannot be treated as Member of the Company unless his name is entered in the Register of Members of the Company. The term Member is different from that of Shareholder . A Shareholder can be Shareholder by acquiring shares but will not be Member till his name is entered in the Register of Members of the Company. This definition is relaxed in case of Section 244 of the Companies Act, 2013, where even a Shareholder is treated as a Member . In case of a Company limited by guarantee and not having Share Capital the person who provides the guarantee will become its Member as soon as his name is entered in the Register of Members. 12. In the instant case, apart from not being a party to the main Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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