ORDER

JUSTICE YOGESH KHANNA, MEMBR (JUDICIAL)

The present appeal is filed by the Appellant under Section 421 of the Companies Act, 2013 against an order dated 04.02.2026 passed by the Ld. NCLT Kolkata Bench in IA (CA) No.265/KB/2025 in CP(CA) No.183/KB/2025.

2. It is the 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 made to Ld. Col Sandeep Dewan Vs Ootacamund Club and Others CA(AT)CH 38/2024 wherein this Tribunal has held as follows: -

19. Though we are not required to, go into it because we are not dealing with the case under Section 241 or 242, but still for the purposes of getting a constructive interpretation, as to, whether a “waiver” under the proviso to Section 244 could be granted for the purposes of drawing the proceedings under section 241, we would need to outline what act of mismanagement and oppression is. It would literally mean, that, for the purposes of concluding an act as an act of oppression, it would mean to be an act which is exercised in such a manner, which creates a burden, which is harsh, wrongful and contrary to law. All these basic elements for determining an act of oppression for the purposes of proviso to Section 244 have to be specifically satisfied not by way of an intrinsic analysis or on an appreciation of allegations by going into the evidence but only by way of a prima facie interpretation of the set of allegations as to whether at all, the act complained of, is an act of oppression.

20. Particularly in the light of the instant case, if we see the controversy in its entirety of allegations, at the backdrop, it appears as if it is a personal act of vengeance due to discord amongst few members of the club of which the appellant was a member and under the aforesaid backdrop there happens to be some rift with regards to the contest in elections. If at all, these set of allegations could be contended to prevail, to merit proceeding under Section 241, then it should have been an allegation by generality and not by virtue of an individual allegation and that is why the law has provided that for invoking Section 241, the strength of 1/5th of the members is required.

4. Reference was also made to the judgement of Cyrus Investments Pvt. Ltd. & Anr. Vs Tata Sons Ltd. & Ors. Company Appeals (AT) No.133 & 139 of 2017 wherein this Tribunal held as under: -

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. Otherwise, the Tribunal will look into the next factor.

(ii) Whether (proposed) application under Se