While deciding an application for ‘waiver’ under proviso to sub-section (1) of Section 244. The factors dependent on merit are (i) Prima facie case; (ii) Limitation; (iii) Allegation pertains to affairs of another Company; (iv) Arbitration; (v) Directorial Complaint; (vi) Conduct of Applicant; and (vii) Acquiescence/Waiver/Estoppel.
The Appellate Tribunal, considering the case of ‘Cyrus Investment Pvt. Ltd. & Anr. Versus Tata Sons Ltd. & Ors., 2017 SCC OnLine NCLAT 261 noticed that the shareholding pattern taking into consideration the fact that majority of the shareholders have less than 10% of the shareholding and thus it has made out an exceptional case to maintain a petition for waiver under Proviso to Sub-section (1) of Section 244 of the Companies Act, 2013. However, the present case of the 1st Respondent ‘Ronny George’ is not only different but a reversal case where majority of the shareholder have more than 10% of shareholding except two who are less than 10% shareholding. Therefore, it cannot be held that the 1st Respondent has made out a case of exceptional circumstances for grant of waiver to maintain an application under Section 241-242 on such ground.