TaxTMI 
TaxTMI 
2026 (5) TMI 524
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.... argument of the learned senior counsel for the appellant while passing an order on waiver application, the Ld. NCLT, without any reason had given final relief to Respondent No.1 herein and the waiver was granted without any reason. It is argued waiver is an exception to filing of a petition under Section 242 of the Companies Act, 2013 and such exception can be allowed only under exceptional circumstances and not otherwise. 3. It is argued the threshold for filing of the petition in a company limited by guarantee is 1/5th of the total number of members; which number in the present case comes out to 150 approximately but whereas the company petition was filed only by 81 members of the Club, out of which 49 have walked away and now company petition is survived only with Respondent No.1 and 35 members and none of the other members, except the Respondent No.1 has a cause. It is argued the Respondent No.1 has since been removed from the membership because of the various charges against him. It is argued not only vide the impugned order the Ld. NCLT had granted waiver to the Respondent No.1 to continue with this company petition but his membership has also been restored. Reference was....
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....ive i.e. the applicant(s) are not member(s), the application is to be rejected outright. Otherwise, the Tribunal will look into the next factor. (ii) Whether (proposed) application under Section 241 pertains to 'oppression and mismanagement'? If the Tribunal on perusal of proposed application under Section 241 forms opinion that the application does not relate to 'oppression and mismanagement' of the company or its members and/or is frivolous, it will reject the application for 'waiver'. Otherwise, the Tribunal will proceed to notice the other factors. (iii) Whether similar allegation of 'oppression and mismanagement', was earlier made by any other member and stand decided and concluded? (iv) Whether there is an exceptional circumstance made out to grant 'waiver', so as to enable members to file application under Section 241 etc.? 5. Reference was made to para 6.2 of the impugned order whereby the waiver application was decided and it is argued that it lacks of any cogent reason to allow such application. Para 6.2 of the impugned order is as under: - 6.2 That the present Com....
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....242 of Companies Act, 2013. 8. It was also argued if one peruses the Company Petition uptil para 57, the allegations are only against wrongful removal of Respondent No.1 and it is only in para 58 of the petition the Respondent No.1 had given instances of relocation of children park; relocation of the building and outsourcing of catering department and these paras do not make an exceptional circumstance to grant waiver. 9. On the other hand the learned senior counsel for the Respondent has argued the Respondent No.1 is a member of appellant club for the last 30 years and has held the post of President for at least four years and though he was terminated by the new Committee on 01.08.2025 but then he filed a company petition challenging his termination, amongst other allegations, and during the pendency of the petition i.e. on 17.12.2025 the appellant club withdrew his termination but suspended Respondent No.1 w.e.f. 01.08.2025 itself and fixed an EOGM on 17.01.2026, only for the purpose of his termination; there being no other agenda. 10. It was argued the said fact was brought to the knowledge of the Ld. NCLT and hearing was concluded in the Company Petition before Ld. NCL....
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.... year, accounts for the proceeding financial year which shall be held to run from 1st of April, to 31st March, to appoint auditors, to elect President, Vice-President, Honorary Secretary, Honorary Treasurer and other office bearers, and to consider or transact any other business which under these Articles sought to be Transacted at general meeting and shall be deemed special business but no such special business shall be brought forward unless a notice thereof has been given to the Honorary Secretary at least fourteen days before the date of such meeting. 105. At every Annual General Meeting the committee shall lay before the company audited income and expenditure account and audited balance sheet made up to the preceding 31st day of March. Copies of such audited balance sheet and income and expenditure account shall be put up on club notice board and sent to each member who has registered with the company his address in India at least twenty-one days before the date of the annual general meeting." 13. It was argued the accounts were to be put up on the notice board as well as copies were to be given to each of the members 21 days prior to the EOGM and if there exists a....
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....se strong suspicion that certain Committee members are deriving personal commission or benefits from the contractor. iv. As a direct result of this outsourcing, the price of catering and restaurant items has sharply increased, burdening members without any improvement in quality. This is in contrast to the Petitioner's tenure, during which all food items were prepared internally in the Club's own kitchen, ensuring better quality control and cost effectiveness. 16. He also referred to various paras of the impugned order to say sufficient reasoning is given for grant of waiver viz: - 3.6 Petitioner No. 1 then received a show-cause notice dated 10.03.2025 from persons claiming to be the Disciplinary Committee, alleging financial/administrative irregularities. Petitioners say no valid AGM resolution ever authorised such investigation, and the committees were illegally constituted. 3.9 After the Company Petition was filed, Respondents issued a letter dated 17.12.2025 withdrawing termination and instead suspending Petitioner No. 1 (stated to operate from 01.08.2025) and issued a notice dated 26.12.2025 calling an EOGM (fixed for 17.01.2026) to consid....
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....the membership of Petitioner No. 1. The Petitioners have placed on record additional written notes demonstrating that prior objections were raised by email on the very date of the EOGM, calling upon the Respondents to refrain from holding the meeting in view of the pendency of proceedings before this Tribunal. 6.11 At this stage, we are not expressing any final opinion on the legality or validity of the EOGM dated 17.01.2026 or any resolution allegedly passed therein. However, the sequence of events clearly demonstrates urgency on the part of the Respondents that is not explained by any compelling necessity, particularly when the matter stood reserved for orders and the very same issues were sub judice. 6.12 We also take note of the specific contention raised in the additional written notes that no minutes of the alleged EOGM have been furnished to the Petitioners till date, and that the disciplinary process culminating in the alleged termination continues to be founded on show cause notices and committee proceedings whose legality is directly under challenge in the main Company Petition. 6.13 In such circumstances, permitting the Respondents to give effe....