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One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=293648 https://www.taxtmi.com/caselaws?id=293648 Maintainability of petition - suppression of material facts - failure to comply with the statutory provisions as defined under the Act is fallacious and is contrary to the very provisions of the Companies Act, 2013 - sections 241 and 242 of Companies Act - HELD THAT:- Since the petitioners do not fulfil the requisite conditions as per extant provisions of Companies Act, 2013, and filed several interim applications seeking various reliefs and respondent No. 2 has also raised preliminary objection about the maintainability and plea of perjury, the Tribunal decided to decide the instant application for maintainability. Therefore, main points for consideration in the instant application is whether the petitioners satisfy the requisite percentage as prescribed under section 244 of the Companies Act, 2013 ; whether the joint petition of the petitioners is maintainable without written consent ; whether the petitioners can be permitted to plead and change election of pleading conveniently to seek equitable relief ; whether the petitioners came to the Tribunal with unclean hands. As per extant provisions of Companies Act, in order to maintain an application/petition, member(s) have to fulfil the requisite condition(s) as prescribed under section 244 of the Companies Act, 2013. Provisions of section 244 of the Act enumerate members, who are eligible to invoke section of 241 of the Act. The Tribunal will decide the question of eligibility in the light of claim/contention(s) made by the members in the company petition and it cannot consider all the provisions of the above section so as to suit petitioners/members basing on subsequent contentions/documents filed by the parties unless in justified reasons as per law. In the instant case, as per provisions of section 244 of the Act, in the case of a company having share capital, a petition can be filed by members of a company, who constitute either 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 members or members holding not less than one-tenth of the issued share capital of the company; in the case of a company not having a share capital, not less than one-fifth of the total number of its members can file petition. The petitioners themselves made a statement in the original petitioner that the authorised share capital of the first respondent-company is Rs. 115,000,000 and the paid-up capital is Rs. 111,557,180 and out of it, the first petitioner claims 29,15,782 equity shares amount to 26.14 per cent. of its paid-up share capital, the second petitioner claims to hold 9,03,177 equity share amount to 8.10 per cent. of its paid-up share capital, the third petitioner is holding 9,50,000 equity shares amounting to 8.52 per cent. of its paid-up share capital. Therefore, all the petitioners have claimed they all together to possess total 42.76 per cent. of the total issued share capital. Therefore, as per the provisions of section 244 of the Companies Act, 2013, not less than one hundred members of the company or not less than one tenth of the total issued share capital of the company - A support document can be permitted to file, as per law, if such is document is not available at the time of filing a case and subsequently obtained it. It is crystal clear that there is no written consent of other petitioners and the second and third petitioners, who are admittedly family members of the first petitioners and staying together in the same house, in normal course, would not arise to execute GPA. Therefore, the execution of GPA itself doubtful which might be executed subsequent to filing of the main company petition to make mockery of provision of law. The petitioner cannot be permitted to contend contra to make claim on other provisions of Act. Admittedly, the main company petition is filed on April 29, 2019 simply on verifying affidavit as stated supra, without any power of attorney and the subsequent alleged power of attorney would not fulfil legal requirement and new pleading and supporting document cannot be permitted unless pleadings of the main company petition is permitted by the Tribunal. Admittedly, there is no amendment sought for in the main petition to raise plea and file supported document with regard to alleged consent by way of GPA in question. Admittedly the first petitioner has not obtained written consent of other petitioners. Secondly, the admitted shareholding of the petitioners 8.93 per cent., 8.10 per cent. and 8.52 per cent. respectively. The remaining shareholding claimed by the first petitioner is sub-judice having granted stayed by the hon ble High Court of Karnataka. Therefore, the disputed shares cannot be claimed by the first petitioner to file the petition on that basis and the fact of dispute and stay was suppressed. Therefore, it is also to be held that the petitioners came to the Tribunal with unclean hands. The instant application is filed by suppressing the material facts and not fulfilling the requisite conditions and has come with unclean hands - Application is allowed. Case-Laws Companies Law Fri, 18 Oct 2019 00:00:00 +0530