JUDGMENT :

SUDHANSU JYOTI MUKHOPADHAYA, J.

1. This common judgment disposes of two appeals against two different orders, passed in one Company Petition.

2. The appellants Cyrus Investments Pvt. Ltd. and Sterling Investment Corporate Pvt. Ltd., both shareholders of 1st Respondent Company – Tata Sons Limited, preferred Company Petition No. 82 of 2016 before the National Company Law Tribunal, Mumbai (hereinafter referred to as ‘Tribunal’) under Sections 241, 242 and 244 of the Companies Act, 2013 alleging continuing act of ‘Oppression & Mismanagement’ of members of 1st Respondent along with an application seeking Interim Relief.

3. On 22nd December 2016, the Tribunal passed a consent order. During the pendency of the same, the 1st Respondent issued notice on 5th January 2017 calling for Extra Ordinary General Meeting of the 1st Respondent Company on 6th February 2017 with subject of business being removal of 11th Respondent – Cyrus Pallonji Mistry as Director of the 1st Respondent Company. The Contempt Petition alleging violation of Tribunal’s Order was filed by appellants with an additional affidavit including the action of the 1st, 14th, 17th and 20th Respondents. During the pendency of the said petition, an application under proviso to Section 244 being I.A.No. 26 of 2017 was filed by the appellants seeking waiver of condition for filing application under Sections 241 and 242 of the Companies Act, 2013. Learned Tribunal, by its order dated 31st January 2017 inter alia stated that Interim Relief had already been rejected in the previous orders but had not decided the issue of maintainability, which was raised on behalf of the contending respondents.

4. On an appeal before this Appellate Tribunal, by Order dated 3rd February 2017, the Appellate Tribunal while rejected the Interim Relief application of the appellants and observed that if the appellants succeed in proving ‘Oppression & Mismanagement’, the Tribunal may restore the position of 11th Respondent. This Appellate Tribunal also held during final hearing, the Tribunal should decide the question of maintainability first and if answer is in negative against the appellants, then to decide the question of waiver and thereafter if waived, to decide the merit.

5. Again during the pendency of the petition, an Extra Ordinary General Meeting was convened by 1st Respondent on 6th February 2017 and removed the 11th Respondent from the Board of Directors. The aforesaid act was also challenged by appellants by Amendment Petition as carried out on 10th February 2017.

6. The Tribunal heard the matter on the issue of maintainability and then passed impugned order dated 6th March 2017 holding that the Company Petition at the instance of appellants is not maintainable. The Tribunal held that the appellants do not have qualification under Section 244, as they hold less than 1/10th of the ‘Issued Share Capital’ of the Company. The Tribunal then decided to proceed on the question of waiver in terms of proviso to Section 244.

7. After hearing the Learned counsel for the parties on the question of waiver, Learned Tribunal by second impugned order dated 17th April 2017 dismissed the application for waiver preferred by appellants and, thereby dismissed the Company Petition. Against the orders dated 6th March 2017 and 17th April 2017, these respective appeals have been preferred.

8. The question for determination in these appeals are:-

(a) whether the petition preferred by appellants under Sections 241 and 242 of the Companies Act is maintainable? In other words, whether the appellants qualify the condition of holding minimum 1/10th of the ‘Issued Share Capital’ of the 1st Respondent Company, and

(b) In case the 1st question is decided in negative against the appellants, then whether the appellants have made out a case of waiver of all or any or the requirements specified in Clause 1(a) of Section 244 so as to enable the appellants (the members) to apply under Section 241.

Proposition on b