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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 ..... Thyagaraja preferred this Appeal, challenging the dismissal of the 'Company Petition' made by the NCLT. 2. C.P.02/2016 was filed under Section 241 of the Companies Act, 2013 against Church of South India Trust Association ('CSITA') on ground of 'Oppression and Mismanagement' of the affairs of CSITA. It is averred that CSITA was incorporated on 20.06.1947 as a 'Charitable Trust' for the purpose of managing the 'Assets' vested with the Church exclusively for the benefit of the 'Members' of CSI, which is a non-registered body covering 'Andhra Pradesh', 'Karnataka', 'Kerala' 'Tamil Nadu' & 'Telangana'. 3. CA12/2016 was preferred by the Respondent/CSITA in C.P.02/2016 seeking to decide the 'Preliminary Legal Issue' with respect to maintainability of the 'Company Petition' on the ground that the 'Petitioner' is neither a 'Member' of the first Respondent Company nor did the 24 persons who had given consent to file the 'Company Petition' are 'Members' of the CSITA. 4. It was averred by the 'Petitioner' that the Hon'ble Madras High Court in Writ Petition No.21343/2011 has directed the Registrar of Companies ('RoC'), 'Tamil Nadu' to carry out a detailed inspection of the 'Company' under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have been elected. 7. At this juncture, we find it relevant to reproduce the findings of NCLT regarding the maintainability of the 'Petition' filed a non-Member of the Company with regard to the affairs of 'Section 8 Company': "61. If jurisdictional point as well as cause of action points are complied with, then question will arise as to whether prima facie view could be taken or not. In the present case, this complainant failed to pass Rule-1 test itself, therefore the question of entertaining this Petition to Rule-2 as well as Rule-3 compliances will not arise. In one way, it could be said, the Petition could be dismissed at threshold itself, because, Tribunal has to always to put a test to itself as to whether it has jurisdiction to exercise its powers under the sections specified. Ordinarily Tribunals, for that matter even Courts are also not expected to extrapolate the jurisdiction so as to get the jurisdiction to deal with the case. Normally, determination of jurisdiction is not to be construed as discretion available to a Judge. Exercise of jurisdiction will arise only when Court is fit in within the jurisdiction given by the Statute. In the given case, the Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demic interest of member is concerned actions with regard to the affairs of Section 8 Company; it cannot be called as prejudicial at least to the members. As to prejudice against the company, if such allegation is made, there must be a material specifying each action and the effect thereof. In this case, except general and omni bus allegations, no specific allegations are made indicating x, y and z persons have indulged in specific actions with particulars, and therefore the management of a company elected through a multi layer arrangement with approval of 4.5 million church members or perhaps communicant members cannot be simply reversed. 66. The Petitioner is one of the communicant members, even if 24 Consenters are taken into consideration; they are part of 4.5 Million of the church members. The church members at the parish level elect and send delegates to Dioceses, and Synod members. Synod members will elect members of CSITA. This being the arrangement, there is no scope to assume that this Petitioner or 24 Consentors to this Petitioner or 200 members alleged to have attended the alleged General Meeting on 16.01.2016 can be equated with members of CSITA who have reached to C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether the 'Appellant' is a 'Member' of the 'Section 8 Company' and has the 'locus standi' to file this 'Appeal' and also whether the 'Petitioner' in C.P.2/2016 could have file the 'Petition' under Sections 241 & 242 of the Companies Act, 2013. It is seen from the array of 'parties' in the 'Order' impugned that the Petitioner is one Mr. John S Dorai and the 'Appellant' herein in this 'Appeal' is not a 'party' to the main 'Petition'. Having noted so, this 'Tribunal' finds it relevant to reproduce Section 2(55) of the Companies Act, 2013, which defines a Member as follows: "2. In this Act, unless the context otherwise requires,- ...... (55) "member", in relation to a company, means- (i) the subscriber to the memorandum of the company who shall be 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;" 11. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows; "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 one-fifth of the total number of its members: Provided that the Tribunal may, on an application made to it in this behalf, 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 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. (2) Where any members of a company are entitled to make an application under subsection (1), any one or more of them having obtained the consent in writing of the rest, may make th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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