A Section 244 waiver need not accompany a petition that already satisfies the statutory membership threshold.

The Respondents filed a petition under Sections 241–242 of the Companies Act, 2013, alleging oppression and mismanagement in the Appellant, a company without share capital.

They relied on written consent from 209 members and pleaded that the company had 977 voting members, so the statutory threshold under Section 244(1)(b) was met.

The Appellant disputed maintainability, asserting that there were 1,250 eligible voting members and that only 98 of the consenting members were eligible; it also questioned the consent letters.

After the Appellant raised its objection, the Respondents filed a precautionary application seeking waiver under Section 244(1)(b). The NCLT granted waiver, and the Appellant appealed.

1. Whether an application for waiver under the proviso to Section 244(1)(b) must be filed with, or simultaneously with, the Section 241 petition, such that a later application renders the petition unmaintainable.

2. Whether the Respondents satisfied the membership threshold under Section 244(1)(b), or otherwise established grounds for waiver, in light of the disputed number and eligibility of members and the challenge to the consent letters.

Section 244(1)(b) of the Companies Act, 2013 requires, for a company without share capital, applicants to comprise at least one-fifth of its total members; its proviso empowers the Tribunal to waive all or any of those requirements to enable an application under Section 241.

The Tribunal’s waiver jurisdiction is to be exercised in accordance with the principles in Cyrus Investments, para 140, which identifies issues—including the merits and other merits-dependent objections—that should not be determined at the waiver stage.

Under Section 101 of the Evidence Act, 1872, the party asserting a fact bears the burden of proving it; the NCLAT applied that principle to the Appellant’s allegations that the consent list was unreliable or forged.

The judgment also referred to M.C. Duraiswami v. Sakthi Sugars Ltd., (1978 SCC OnLine Mad 138), in discussing written consent.

The NCLAT found that the Company’s own election circular and voters’ list identified 977 voting members, and the 209 consents exceeded one-fifth of that number.

The Appellant did not substantiate its higher membership figure or its challenge to the validity of the consents through documentary proof, expert examination, or evidence from any consenting member; the burden of proof therefore remained undischarged.

The Respondents had also pleaded the relevant membership figures and consents in the original petition, and their later waiver application was expressly precautionary.

In these circumstances, the subsequent filing did not make the petition unmaintainable; the record supported the conclusion that the threshold was met, while the NCLT’s waiver order was consistent with the governing principles.

It dismissed the appeals and closed the interlocutory applications.