#TataMistry:Company petition and waiver application dismissed, party shifts to NCLAT again

After days of arguments, the Mumbai Bench of the NCLT has (orally) dismissed the company petition and waiver application filed by Cyrus Mistry through his investment entities against Ratan Tata, Tata Sons and others..Cyrus Mistry’s team was briefed by Desai and Diwanji and represented by Counsels Aryama Sundaram, Janak Dwarkadas and Somasekhar Sundaresan. Tata’s side was briefed by Shardul Amarchand Mangaldas, Karanjawala & Co and represented by Counsels Abhishek Manu Singhvi, Ravi Kadam, S.N. Mookharjee, Sudipto Sarkar and Mohan Parasaran..While the company petition was held not maintainable under Section 244 of the Companies Act, 2013 (for lack of requisite shareholding i.e. 10% of issued share capital), a waiver application under the same Section was accompanied by lengthy arguments. The waiver application, which if admitted would have allowed the case to move on to merits, has also been dismissed by the Bench..Mistry’s case for waiver hinged on it being treated as ‘triable case’ and not a ‘mini-trial’ on merits. It was argued on behalf of Mistry that despite his companies not having the statutory 10%, they are not ‘fly by night’ shareholders and hold a ‘substantial interest’ in Tata Sons, which runs in the hundreds of crores..On the other hand, Tata’s arguing counsel, Singhvi sought to crush all their arguments on multiple grounds. Right from arguing that the proviso cannot swallow the main provision, to stating that this is not the ‘right forum’ for this grievance and that petitioners are not rendered ‘remediless’ if not entertained, it appears that the Bench chose to believe the latter..Needless to add, the appeal to the NCLAT will lie against the maintainability order first. Here is how the future may look like,.If NCLAT grants maintainability, case bounces back to NCLT for hearing on merits;If NCLAT holds the petition not maintainable, an appeal against the waiver application will be argued at the NCLAT. If the NCLAT is then convinced with the waiver application, case will be remanded to the NCLT for hearing on merits;If NCLAT dismisses both company petition and waiver application like the NCLT, case reaches the Supreme court..Rest assured, Mistry will fight this case till the very end..Detailed order yet to be uploaded.