Authority: National Company Law Tribunal, Kolkata Bench
Order Date: 09.06.2026
Case Overview
The National Company Law Tribunal (NCLT) Kolkata Bench, comprising Member (Judicial) Smt. Bidisha Banerjee and Member (Technical) Cmde Siddharth Mishra, heard IA(Companies Act)259/(KB)/2025 in CP No. 83/KB/2021. The application was filed under Section 244(1) of the Companies Act, 2013 read with Rule 11 of the NCLT Rules, 2016, seeking waiver of the statutory requirements for maintaining a petition alleging oppression and mismanagement under Sections 241-242 of the Companies Act, 2013.
The petitioners were Man Mohan Varma, Saroj Varma, Manish Varma, and Rima Varma, formerly promoters and shareholders of Pre-Stressed Udyog (India) Private Limited. The respondents were the company itself, Dinesh Pradhan, Mahesh Pradhan, and Ritu Ritolia (a Practising Company Secretary).
The dispute originated from a Share Purchase Agreement (SPA) dated 21.02.2017 and supplementary agreement dated 06.03.2017, where petitioners agreed to transfer their entire shareholding of 10,70,000 shares (100%) to respondents Dinesh Pradhan and Mahesh Pradhan for a consideration of ₹17.45 crores. Petitioners admitted resigning from the board in 2017 and transferring all shares to respondents.
Petitioners alleged that respondents forged an indemnity bond dated 22.06.2017 to effect share transfers without proper transfer deeds or consideration payment. They claimed the notary public, Satyendra Pandit, confirmed the indemnity bond was forged through an affidavit in Information Petition No. 2131 of 2020. The Registrar of Companies had initiated enquiry under Section 206(1) via notice dated 15.12.2020, and respondent No. 4 (Ritu Ritolia) was found guilty of professional misconduct by ICSI disciplinary committee on 10.12.2021.
Key Legal Issues and Tribunal's Reasoning
The tribunal focused on the fundamental issue of whether a belated waiver application filed in 2025 could cure the defect in a petition filed in 2021 when petitioners admittedly held zero shares in the company.
The tribunal extensively referenced the NCLAT judgment in Cyrus Investments Pvt Ltd & Anr. Vs. Tata Sons Ltd & Ors., particularly paragraph 151 which outlines four mandatory factors for granting waiver:
1. Whether applicants are members of the company (if not, application must be rejected outright)
2. Whether the application pertains to oppression and mismanagement
3. Whether similar allegations were earlier made and decided
4. Whether exceptional circumstances exist for granting waiver
The tribunal noted that petitioners emphatically admitted transferring all shares in 2017 and resigning from directorship, thus ceasing to be "members" as defined under Section 244(1) of the Companies Act, 2013. The statutory requirement under Section 244(1) mandates that for companies with share capital, applicants must hold not less than one-tenth of issued share capital or comprise not less than one hundred members.
The tribunal held that a waiver application under proviso to Section 244(1) must be filed simultaneously with the main petition under Section 241-242, not four years later as an afterthought. The Cyrus Investments judgment clearly establishes that the tribunal cannot deliberate on merits of a Section 241 application without first deciding the waiver application, and that the waiver application must be decided before considering the main petition.
Final Outcome
The tribunal dismissed the hopelessly belated waiver application (IA 259 of 2025) and consequently dismissed the main Company Petition No. 83/KB/2021 as being non-maintainable from inception due to petitioners' lack of membership status. All pending applications were also dismissed. The registry was directed to send email copies to all parties and counsel.
Topics: NCLT Procedure, Shareholding Requirements, Oppression and Mismanagement