TaxTMI 
TaxTMI 
2023 (8) TMI 414
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...., Advocates For the Respondent : Mr. Manusumyer Singh Mr. Shravan Chandrashekhar, Advocates for R2 and R3 Ms. Amrita Tonk, Advocates for 10 to 13 Mr. Virender Ganda, Sr. Adv. with Mr. SP Singh Chawla, Aditya, Mr. Ayandeb Mitra, Rohan S. Nandy, Advocates for R1 For the Appellant : Mr. P. Nagesh, Sr. Adv. with Ms. Amrita Tonk, Mr. Shouryabitya, Mr. Akshay Sharma, Advocates For the Respondent : Mr. Divij Kumar & Varun Tandon, Advocate for R11 to R15 Mr. Manusumyer Singh Mr. Shravan Chandrashekhar, Advocates for R2 and R3 Mr. Virender Ganda, Sr. Adv. with Mr. SP Singh Chawla, Aditya, Mr. Ayandeb Mitra, Rohan S. Nandy, Advocates for R1 For the Appellant : Mr. Manusumyer Singh Mr. Shravan Chandrashekhar, Advocates For the Respondent : Ms. Amrita Tonk, Advocates for R3 to 6 Mr. Divij Kumar & Varun Tandon, Advocate for R7 to R11 Mr. Virender Ganda, Sr. Adv. with Mr. SP Singh Chawla, Aditya, Mr. Ayandeb Mitra, Rohan S. Nandy, Advocates for R1 ORDER Per: Justice Rakesh Kumar Jain : ( Oral ) This order shall dispose of four appeals i.e. CA (AT) No. 299 of 2022, CA (AT) No. 13 of 2023, CA (AT) No. 14 of 2023 and CA (AT) No. 23 of 2023 as all these appeals have been file....
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....ted 20.04.2015. The relevant part of the order dated 20.04.2015, passed by the Hon'ble High Court is reproduced as under;- "I have heard Learned Counsel for the parties and appraised the impugned order. The Company Law Board, while declining the interim relief, has also dismissed the main petition. It is a matter of record that the respondents had not filed counter/defence or any documents in pursuance to the petition filed under Section 397, 399 and 402 of the Compaies Act, 1956. The Company Law Board ought not to have dismissed the petition on merits while declining the interim relief to the petitioner. It appears that the matter has been decided in utter haste without commenting upon the merits of the matter/petition. Without adverting to the merits and de-merits of the matter, much less the plea/counter pleas of the parties to this lis deem it appropriate to set aside the impugned order and remand the matter back to the Company Law Board by restoring the appeal to its original number. Parties are directed to appear before the Company Law Board on 28.04.2015. The Petitioner shall be at liberty to pray for interim relief afresh. The aforesaid o....
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....h the Petitioners holds 2.84% of the total shareholding of the Respondent No. 1 Company which falls short of minimum eligibility criteria of 10% shareholding as stipulated under Section 399 of the Companies Act, 1956 and Clause (a) of Sub-Section (1) of Section 244 of the Companies Act, 2013 for filing petition under Section 241-242 of the Act. However, under Section 399 the Petitioner has the necessary and valid consents. But to ensure that no injustice is caused on technical grounds and the Petitioner's claims that the balance of convenience is in their favour and irreparable injury will be caused to the Petitioners in the event this Bench does not intervene, the Petitioners seeks a waiver of the requirements as stipulated under Clause (a) of Sub-Section (1) of Section 244 of the Companies Act, 2013. A copy of the chart depicting the shareholding pattern of the members of the Kapur Family is already annexed to the rejoinder to the company petition as Annexure A." 8. There was only one prayer made in this application which requires to be mentioned and read as under:- "(a) Grant waiver to the Petitioners in order to enable them to file application under Section 241 of t....
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....cord as to whether the proposed application under Section 241 merits consideration. 150. The Tribunal is not required to decide merit of (proposed) application under Section 241, but required to record grounds to suggest that the applicants have made out some exceptional case for waiver of all or of any ofthe requirements specified in clauses (a) and (b) of sub-section (1) of Section 244. Such opinion required to be formed on the basis of the (proposed) application under Section 241 and to form opinion whether allegation pertains to 'oppression and mismanagement' of the company or its members. The merit cannot be decided till the Tribunal waives the requirement and enable the members to file application under Section 241. 151. Normally, the following factors are required to be noticed by the Tribunal before forming its opinion as to whether the application merits 'waiver' of all or one or other requirement as specified in clauses (a) and (b) of sub-section (1) Section 244:- (i) Whether the applicants are member(s) of the company in question? If the answer is in negative i.e. the applicant(s) are not member(s), the application is to be rejected outright. O....
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.... "399. Right to apply under section 397 and 398. (1) The following members of a company shall have the right to apply under section 397 or 398:- (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, provided that the applicant or applicants have paid all calls and other sums due on their shares; (b) in the case of a company not having a share capital, not less than onefifth of the total number of its members. (2) For the purposes of sub- section (1), where any share or shares are held by two or more persons jointly, they shall be counted only as one member. (3) Where any members of a company are entitled to make an application in virtue of 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. (4) The Central Government may, if in its opinion circumstances exist which make it just and equ....
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...., and that by reason of such change, it is likely that the affairs of the company will be conducted in a manner prejudicial to its interests or its members or any class of members, may apply to the Tribunal, provided such member has a right to apply under section 244, for an order under this Chapter. (2) The Central Government, if it is of the opinion that the affairs of the company are being conducted in a manner prejudicial to public interest, it may itself apply to the Tribunal for an order under this Chapter. [Provided that the applicants under this sub-section, in respect of such company or class of companies, as may be prescribed, shall be made before the Principal Bench of the Tribunal which shall be dealt with by such Bench.] (3) Where in the opinion of the Central Government there exist circumstances suggesting that-- (a) any person concerned in the conduct and management of the affairs of a company is or has been in connection therewith guilty of fraud, misfeasance, persistent negligence or default in carrying out his obligations and functions under the law or of breach of trust; (b) the business of a company is not or has not ....
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....gulation of conduct of affairs of the company in future; (b) the purchase of shares or interests of any members of the company by other members thereof or by the company; (c) in the case of a purchase of its shares by the company as aforesaid, the consequent reduction of its share capital; (d) restrictions on the transfer or allotment of the shares of the company; (e) the termination, setting aside or modification, of any agreement, howsoever arrived at, between the company and the managing director, any other director or manager, upon such terms and conditions as may, in the opinion of the Tribunal, be just and equitable in the circumstances of the case; (f) the termination, setting aside or modification of any agreement between the company and any person other than those referred to in clause (e): Provided that no such agreement shall be terminated, set aside or modified except after due notice and after obtaining the consent of the party concerned; (g) the setting aside of any transfer, delivery of goods, payment, execution or other act relating to property made or done by or against the company within three months b....
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....s made by the order in the memorandum or articles of a company shall, in all respects, have the same effect as if they had been duly made by the company in accordance with the provisions of this Act and the said provisions shall apply accordingly to the memorandum or articles so altered. (7) A certified copy of every order altering, or giving leave to alter, a company's memorandum or articles, shall within thirty days after the making thereof, be filed by the company with the Registrar who shall register the same. (8) If a company contravenes the provisions of sub-section (5), the company shall be punishable with fine which shall not be less than one lakh rupees but which may extend to twenty-five lakh rupees and every officer of the company who is in default shall be punishable 2*** with fine which shall not be less than twenty-five thousand rupees but which may extend to 3[one lakh rupees]. 244. Right to apply under section 241.- (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 no....
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....erving that it tantamount to deemed waiver. 18. In this regard, we may refer to a decision of this Tribunal in the case of Cyrus Investments Pvt. Ltd. & Anr. (Supra) in which it has been held that "the Tribunal is required to decide the question whether application merits 'waiver' of all or any of the requirements as specified in clauses (a) and (b) of subsection (1) of Section 244 to enable such member(s) to file application under Section 241 and such order of 'waiver' being judicial in nature, cannot be passed by Tribunal, in a capricious or arbitrary manner and can be passed only by a speaking and reasoned order after notice to the (proposed) respondent(s)". The decision taken by this Tribunal in the aforesaid case i.e. Cyrus Investment Pvt. Ltd. (Supra) has never been challenged before the Hon'ble Supreme Court and thus attained finality. 19. Even otherwise, it is a basic tenet of law that nobody should be condemned without hearing and in the present case when the application bearing 272 of 2016 was being contested tooth and nail by the Respondents therein and they had made a prayer to the Tribunal to frame their question about the maintainability of the petition as a pre....