Ch. Mohd. Sharief Tariq, Member - (1.) Under consideration is C.A. No. 36 of 2018 filed in the matter of M/s. Malayalam Industries Ltd., by the applicant, viz., Mr. Thomas George, wherein there are four respondents, including the first respondent-company. The application has been filed to seek waiver of the requirement of section 244(1)(a) which provides that in case of the company having a share capital, any member or members holding not less than one-tenth of the issued share capital of the company, shall have a right to apply under section 241 of the Companies Act, 2013, subject to the condition that the applicant or applicants has or have paid all the calls and other sums due on his or their shares.
(2.) In the application, it has been prayed to waive the abovesaid requirement, in the light of the proviso to section 244(1), which provides 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 (b) so as to enable members to apply under section 241 of the Companies Act, 2013.
(3.) The applicant along with his wife is holding 8.84 per cent, of the total paid-up capital of the first respondent-company, therefore is not fulfilling the requirement under section 244(1)(a) of the Companies Act, 2013, for filing petition under section 241. The applicant submits that he and his wife being shareholders in the first respondent-company are constrained to file the proposed petition under section 241 of the Companies Act, 2013, due to the illegal, wrong and burdensome conduct of respondents Nos. 2 to 4, resulting in mismanagement of the affairs of the first respondent-company and oppression of the applicant along with his wife's rights therein. It has further been submitted that as respondent No. 2-Mr. John Mathew (director) is conducting the affairs of the first respondent-company solely to serve his personal interest and that of his family resulting in unjust enrichment to select a few shareholders at the expenses of the applicant. Respondents Nos. 3 and 4 in collusion with respondent No. 2 are acceding to all decisions made by respondent No. 2 thereby becoming party to the oppressive activities conducted by respondent No. 2 to the detriment of the applicant. Thereby, the board of directors of the first respondent-company, failed to act in good faith and in exercising care in promoting the interest of the first respondent-company and failed in their fiduciary duty towards the respondent-company. The main grounds taken by the applicant for seeking waiver of the requirement of section 244(1)(a) of the Companies Act, 2013, are as follows: (i) That an investigation has been conducted pertaining to the affairs of the company on the direction of the hon'ble High Court of Kerala. The investigation report has exposed the misdemeanors, illegalities, wrong doings of respondent No. 2 and those who are siding with him. (ii) The second ground taken by the petitioner is that respondent No. 2 is attempting to strengthen his position by allotting to himself shares, by way of private placement which further dilutes the shareholding of the applicant and his wife.;