procedural aspects of nclt - taxmann · companies act, 2013, under which nclt is empowered to pass...

36
3.1 Background GeneralproceduresrelatingtoNCLTandNCLAThavebeenspeciedinNCLTRules,2016andNCLATRules,2016.ManyoftheproceduresandprovisionsarecommontoNCLTandNCLAT.Infewcases,thereissomedeviations,thoughnotmajordeviations.Whereverproceduresarecommon,referencetobothruleshavebeengiven.ProceduresapplicabletobothNCLTandNCLATarediscussedrst.ProceduresspecicallyapplicabletoNCLTandNCLATarediscussedlater.NCLTRules,2016alsoprovideforspecicproceduresinrespectofvarioussectionsofCompaniesAct,2013,underwhichNCLTisempoweredtopassorders.ProvisionsinthatregardarediscussedundereachsuchsectionoftheCompaniesAct,2013.3.1-1 Overview of procedures before NCLT OverviewofprocedurestobefollowedbeforeNCLT,asspeciedvide NationalCompanyLawTribunalRules,2016,notiedon21-7-2016aresummarizedbelow.TherulesprovideforinternalmanagementofNCLTandalsoproceduralaspects.PowersandfunctionsofPresidentofNCLThavebeenspeciedinrule16ofNCLTRules,2016,PowersandfunctionsofRegistrarofNCLThavebeenspeciedinrule17ofNCLTRules,2016,TherewillbeSecretaryatPrincipalBenchofNCLTatDelhi.Hispowersandfunctionshavebeenspeciedinrule18ofNCLTRules,2016,CHAPTER 3Procedural aspects of NCLT and NCLAT 22

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Page 1: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

3.1 BackgroundGeneral

procedures

relating

to

NCLT

and

NCLAT

have

been

specified

in

NCLT Rules,

2016

and

NCLAT

Rules,

2016.

Many of

the

procedures

and

provisions

are

common

to

NCLT

and

NCLAT.

In

few cases,

there

is

some

deviations,

though

not

major

deviations.

Wherever

procedures are

common,

reference

to

both

rules

have

been

given.

Procedures

applicable

to

both

NCLT

and

NCLAT

are

discussed

first. Procedures

specifically

applicable

to

NCLT

and

NCLAT

are

discussed

later.

NCLT Rules,

2016

also

provide

for

specific

procedures

in

respect

of

various

sections of

Companies

Act,

2013,

under

which

NCLT

is

empowered

to

pass

orders. Provisions

in

that

regard

are

discussed

under

each

such

section

of

the Companies

Act,

2013.

3.1-1 Overview of procedures before NCLTOverview

of

procedures

to

be

followed

before

NCLT,

as

specified

vide

National Company

Law

Tribunal

Rules,

2016,

notified

on

21-7-2016

are

summarized below.

The rules

provide

for

internal

management

of

NCLT

and

also

procedural

aspects.

Powers and

functions

of

President

of

NCLT

have

been

specified

in

rule

16

of NCLT

Rules,

2016,

Powers and

functions

of

Registrar

of

NCLT

have

been

specified

in

rule

17

of NCLT

Rules,

2016,

There will

be

Secretary

at

Principal

Bench

of

NCLT

at

Delhi.

His

powers

and functions

have

been

specified

in

rule

18

of

NCLT

Rules,

2016,

CH

AP

TE

R

3 Procedural aspects of NCLT and NCLAT

22

Page 2: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

Appeal, petition

or

application

or

caveat

petition

or

objection

or

counter

before NCLT

shall

be

in

English

and

in

triplicate,

typed

or

printed

in

double

spacing of

standard

petition

paper

with

proper

margins.

Details

to

be

given

are specified

in

rules

20

and

21

of

NCLT

Rules,

2016,

It should

be

indexed

and

stitched

together

in

a paper

book

form.

Appeal shall

be

divided

in

paragraphs

and

numbered

consecutively.

Appeal, application,

caveat

or

petition

should

be

in

triplicate.

Appeal

should

be accompanied

by

certified

copy

of

order

appealed

against.

One copy

of

appeal

should

be

given

to

opposite

party,

The general

heading

in

all

proceedings

before

tribunal,

in

all

advertisements

and notices

shall

be

in

form

NCLT.4

Petition, application

or

reference

shall

be

in

form

NCLT.1

It should

be

accompanied

by

form

NCLT.2

(Notice

of

Admission)

[This

form

is practically

doing

work

which

office

of

NCLT

is

expected

to

do].

In case

of

interlocutory

application,

form

NCLT.1

should

be

accompanied

by form

NCLT.3.

Petition or

application

including

interlocutory

application

shall

be

verified

in form

NCLT.6.

Notice to

opposite

party

shall

be

issued

in

form

NCLT.5.

If advertisement

is

to

be

published,

it should

be

in

form

NCLT.3A.

The

requirements of

notice

have

been

specified

in

rule

35

of

NCLT

Rules,

2016.

Appeal should

be

accompanied

with

prescribed

fees

and

envelopes

and

notice of

forms

as

specified.

The fees

payable

are

prescribed

in

rule

165

of

NCLT

Rules,

2016.

Fees

are

payable by

way

of

demand

draft

drawn

in

favour

of

Pay

and

Accounts

Officer,

Ministry

of

Corporate

Affairs,

New

Delhi/Kolkata/Chennai/Mumbai

as

applicable.

Appeal should

be

filed

in

person

or

through

authorized

representative.

Acknowledgement

will

be

given

on

submission

of

appeal.

If

there

are defects,

the

appeal

will

be

returned

for

rectification.

If affidavit

is

to

be

filed,

it should

be

in

form

NCLT.7.

Requirements

of

affidavit are

given

in

rules

125

to

230

of

NCLT

Rules,

2016.

Special

procedures

for

applications,

petition

or

appeals

under

various sections

have

been

specified

in

rules

66

to

88

of

NCLT

Rules,

2016.

List of

documents

to

be

filed

in

each

case

are

specified

in

Annexure

8 of

NCLT Rules,

2016,

23 BACKGROUND Para 3.1

Page 3: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

A

person

can

appear

in

person

or

through

authorized

representative. Appearance

should

be

by

filing

vakalatnama

or

memorandum

of

appearance in

form

No.

NCLT.12.

Authorised

representative

can

make

application

in

form

NCLT.10

to Registrar

to

appoint

a person

as

his

intern.

Such

intern

can

have

access

to

records and

obtain

copies

of

orders

of

bench

of

NCLT.

Witnesses can

be

examined

on

oath.

If

petitioner

appears

but

respondent

does

not,

NCLT

can

pass

ex parte order

on

merit.

Application for

execution

of

order

shall

be

in

form

NCLT.8.

Application for

rectification

of

order

can

be

made

in

form

NCLT.9

within

two years

- rule

154

of

NCLT

Rules,

2016.

Order of

NCLT

should

be

filed

with

ROC

in

form

INC.28

with

fees.

These are

discussed

in

greater

details

in

following

paragraphs.

3.1-2 General powers of NCLT and NCLATSome

general

powers

of

NCLT

and

NCLAT

are

as

follows.

Power to exempt from compliance of these rules - NCLT and

NCLAT

may,

on sufficient

cause

being

shown,

exempt

the

parties

from

compliance

with

any requirement

of

these

rules

and

may

give

such

directions

in

matters

of practice

and

procedure,

as

it may

consider

just

and

expedient

on

the

application moved

in

this

behalf

to

render

substantial

justice

- Rule

14

of

NCLT Rules,

2016

and

Rule

14

of

NCLAT

Rules,

2016.

Power to extend time for doing any Act - NCLT and

NCLAT

may

extend

the time

appointed

by

these

rules

or

fixed

by

any

order,

for

doing

any

act

or taking

any

proceeding,

upon

such

terms,

if any,

as

the

justice

of

the

case

may require,

and

any

enlargement

may

be

ordered,

although

the

application

therefore is

not

made

until

after

the

expiration

of

the

time

appointed

or

allowed - Rule

15

of

NCLT

Rules,

2016

and

Rule

15

of

NCLAT

Rules,

2016.

Inherent Powers of NCLT and NCLAT - NCLT and

NCLAT

have

inherent

powers to

make

such

orders

as

may

be

necessary

for

meeting

the

ends

of

justice or

to

prevent

abuse

of

the

process

of

NCLT

- Rule

11

of

NCLT

Rules,

2016 and

Rule

11

of

NCLAT

Rules,

2016.

See further

discussions

on

‘inherent

powers’

of

NCLT

and

NCLAT

in

another

chapter.

Para 3.1 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 24

Page 4: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

3.1-3 Timings and sittings of NCLT and NCLATNCLT

shall

hold

its

sittings

either

at

its

headquarter

or

at

such

other

place

falling within

its

territorial

jurisdiction

as

it may

consider

convenient.

Thus,

circuit benches

are

possible

- Rule

8 of

NCLT

Rules,

2016.

NCLAT shall

hold

its

sittings

at

it HQ

in

New

Delhi

- Rule

8 of

NCLAT

Rules,

2016 [No

provision

for

circuit

benches].

Sitting hours of NCLT and NCLAT

-

The

sitting

hours

of

NCLT

shall ordinarily

be

from

10:30

AM

to

1:00

PM

and

2:00

P.M.

to

4:30

PM

- Rule

9 of

NCLT

Rules,

2016.

The sitting

hours

of

NCLAT

shall

ordinarily

be

from

9:30

AM

to

1:00

PM

and 2.15

P.M.

to

5.00

PM

- Rule

9 of

NCLAT

Rules,

2016.

Working hours of office of NCLT and NCLAT - The

office

of

NCLT

and

NCLAT and

shall

remain

open

on

all

working

days

from

9.30

A.M.

to

6.00

P.M Rule

10(1)

of

NCLT

Rules,

2016

and

- Rule

10(1)

of

NCLAT

Rules,

2016.

The Filing

Counter

of

the

Registry

of

NCLT

and

NCLAT

shall

be

open

on

all working

days

from

10.30

AM

to

5.00

P.M

- Rule

10(2)

of

NCLT

Rules,

2016 and

- Rule

10(2)

of

NCLAT

Rules,

2016.

3.1-4 Listing of urgent casesAn

urgent

matter

filed

before

12

noon

shall

be

listed

before

NCLT

and

NCLAT on

the

following

working

day,

if it is

complete

in

all

respects

as

provided in

these

rules

and

in

exceptional

cases,

it may

be

received

after

12

noon

but

before

3.00

P.M.

for

listing

on

the

following

day,

with

the specific

permission

of

the

Bench

- Rule

13

of

NCLT

Rules,

2016

and

Rule

13 of

NCLAT

Rules,

2016.

3.2 Institution of proceedings, petition, appeals before NCLT and NCLATProcedure,

as

specified

in

Rule

20

of

NCLT

Rules,

2016

and

Rule

19

of

NCLAT Rules,

2016

is

briefly

as

follows.

Language of NCLT and NCLAT- Every

appeal

or

petition

or

application

or

caveat petition

or

objection

or

counter

presented

to

NCLT

and

NCLAT

shall

be in

English.

If

it is

in

some

other

Indian

language,

it shall

be

accompanied

by a copy

translated

in

English

- Rule

20(1)

of

NCLT

Rules,

2016

and

Rule

19(1) of

NCLAT

Rules,

2016.

Typing or printing and indexing - Appeal

or

petition

or

application

shall

be fairly

and

legibly

type

written,

lithographed

or

printed

in

double

spacing

on one

side

of

standard

petition

paper

with

an

inner

margin

of

about

four

25 INSTITUTION OF

PROCEEDINGS

BEFORE

NCLT

AND

NCLAT Para 3.2

Page 5: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

centimeter width

on

top

and

with

a right

margin

of

2.5.

cm,

and

left

margin

of 5 cm,

duly

paginated,

indexed

and

stitched

together

in

paper

book

form.

The cause

title

shall

state

“Before

the

National

Company

Law

Tribunal”

or

“Before the

National

Company

Law

Appellate

Tribunal”

and

shall

specify

the Bench

to

which

it is

presented

and

also

set

out

the

proceedings

or

order

of the

authority

against

which

it is

preferred.

Cause title and paragraphs - Appeal

or

petition

or

application

or

counter

or

objections

shall

be

divided

into

paragraphs

and

shall

be

numbered consecutively

and

each

paragraph

shall

contain

as

nearly

as

may

be,

a separate

fact

or

allegation

or

point.

Provision of law to be indicated after cause title - Every

proceeding

shall

state immediately

after

the

cause

title

the

provision

of

law

under

which

it is

preferred

- Rule

20(9)

of

NCLT

Rules,

2016

and

Rule

19(8)

of

NCLAT

Rules, 2016.

Details of each party - Full

name,

parentage,

age,

description

of

each

party

and address

and

in

case

a party

sues

or

being

sued

in

a representative

character, shall

also

be

set

out

at

the

beginning

of

the

appeal

or

petition

or

application. It

need

not

be

repeated

in

the

subsequent

proceedings

in

the

same appeal

or

petition

or

application.

Numbers to be given to parties - The

names

of

parties

shall

be

numbered

consecutively

and

a

separate

line

should

be

allotted

to

the

name

and description

of

each

party

- Rule

20(6)

of

NCLT

Rules,

2016

and

Rule

19(6)

of NCLAT

Rules,

2016.

These numbers

shall

not

be

changed

and

in

the

event

of

the

death

of

a party

during

the

pendency

of

the

appeal

or

petition

or

matter,

his

legal

heirs

or representative,

as

the

case

may

be,

if more

than

one

shall

be

shown

by

sub-numbers.

Where fresh

parties

are

brought

in,

they

may

be

numbered

consecutively

in

the particular

category,

in

which

they

are

brought

in

- Rule

20(8)

of

NCLT

Rules, 2016

and

Rule

19(7)

of

NCLAT

Rules,

2016.

3.2-1 Particulars to be set out in the address for serviceThe

address

for

service

of

summons

shall

be

filed

with

every

appeal

or

petition or

application

or

caveat

on

behalf

of

a party

and

shall

as

far

as

possible contain

the

details

as

specified

in

Rule

21

of

NCLT

Rules,

2016

and

Rule 20

of

NCLAT

Rules,

2016.

3.2-2 Initialling alterationEvery

interlineations,

eraser

or

correction

or

deletion

in

any

appeal

or

petition or

application

or

document

shall

be

initialled

by

the

party

or

his

Para 3.2 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 26

Page 6: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

authorised representative

presenting

it - Rule

22

of

NCLT

Rules,

2016

and

Rule 21

of

NCLAT

Rules,

2016.

3.2-3 Production of authorisation for and on behalf of an associationWhere

an

appeal

or

application

or

petition

or

other

proceeding

purported

to be

instituted

by

or

on

behalf

of

an

association,

the

person

or

persons

who

sign(s) or

verify(ies)

the

same

shall

produce

along

with

such

application,

for

verification by

the

Registry,

a true

copy

of

the

resolution

of

the

association

empowering such

person(s)

to

do

so.

The

document

shall

set

out

the

list

of

members

for

whose

benefit

the proceedings

are

instituted.

Registrar may

at

any

time

call

upon

the

party

to

produce

such

further

materials as

he

deems

fit

for

satisfying

himself

about

due

authorization

- Rule

31

of

NCLT

Rules,

2016

and

Rule

30

of

NCLAT

Rules,

2016.

3.3 Presentation of petition or appealRule

23

of

NCLT

Rules,

2016

and

Rule

22

of

NCLAT

Rules,

2016

state

as

follows.

Petition or appeal in triplicate to be presented physically and not through post

- Every

petition,

application,

caveat,

interlocutory

application,

documents and

appeal

shall

be

presented

in

triplicate

by

the

appellant

or

applicant or

petitioner

or

respondent,

as

the

case

may

be,

in

person

or

by

his duly

authorised

representative

or

by

an

advocate

duly

appointed

in

this behalf

in

the

prescribed

form

with

stipulated

fee

at

the

filing

counter.

Non-compliance of

this

may

constitute

a valid

ground

to

refuse

to

entertain

the same.

Documents to be duly certified with index - Every

petition

or

application

or

appeal may

be

accompanied

by

documents

duly

certified

by

the

authorised

representative or

advocate

filing

the

petition

or

application

or

appeal

duly

verified from

the

originals.

All

the

documents

filed

in

NCLT

and

NCLAT

shall

be

accompanied

by an

index

in

triplicate

containing

their

details

and

the

amount

of

fee

paid

thereon.

Sufficient number

of

copies

of

the

appeal

or

petition

or

application

shall

also

be filed

for

service

on

the

opposite

party

as

prescribed

under

these

rules.

In the

pending

matters,

all

applications

shall

be

presented

after

serving

copies

thereof in

advance

on

the

opposite

side

or

his

authorised

representative.

Meaning of ‘Certified’ - “Certified” means

in

relation

to

a copy

of

a doc-

ument - (a)

certified

as

provided

in

section

76

of

the

Indian

Evidence

Act,

27 PRESENTATION OF

PETITION

OR

APPEAL Para 3.3

Page 7: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

1872; or

(b)

certified

as

provided

in

section

6 of

Information

Technology

Act, 2000;

or

(c)

certified

copy

issued

by

the

Registrar

of

Companies

under

the Act

or

(d)

copy

of

document

as

may

be

a downloaded

from

any

online

portal prescribed

under

section

398

of

the

Act

or

a photo

copy

of

the

orig-

inal pertaining

to

any

company

registered

with

the

Office

of

the

Registrar

of Companies

of

the

concerned

State

duly

certified

by

a legal

practitioner

or a chartered

accountant

in

practice

or

a cost

accountant

or

a company

secretary in

practice -

rule

2(9)

of

NCLT

Rules,

2016.

Processing fees to be paid - The

processing

fee

prescribed

by

these

rules,

with required

number

of

envelopes

of

sufficient

size

and

notice

forms

shall

be filled

along

with

memorandum

of

appeal.

3.3-1 Fees payable with application, petition or appealSection

459(2)

of

Companies

Act,

2013

empowers

Central

Government

to

prescribe payment

of

fees

while

making

any

application

before

NCLT

for

any approval,

sanction,

consent,

confirmation,

direction

etc.

Fees payable

are

specified

in

Schedule

to

NCLT

Rules,

2016

and

NCLAT

Rules, 2016.

Fees

are

payable

on

interlocutory

application

also.

Fees

are

payable by

way

of

demand

draft

drawn

in

favour

of

Pay

and

Accounts

Officer, Ministry

of

Corporate

Affairs

New

Delhi/Kolkata/Chennai/Mumbai

as decided

by

President

of

NCLT

- Rule

112

of

NCLT

Rules,

2016

and

Rule

55 of

NCLAT

Rules,

2016.

Fee for appeal before NCLAT

-

Fee

for

filing

appeal

or

interlocutory application,

and

process

fee

shall

be

as

follows

(schedule

to

NCLAT

Rules,

2016) (a)

Protection

of

employee

during

investigation

under

section

218(3)

of Companies

Act,

2013

- Rs

1,000

(b)

Appeal

to

NCLAT

under

section

421(1)

of Companies

Act,

2013

- Rs

5,000.

3.3-2 Three copies of petition or application to be filed and copy to be delivered to opposite partyThe

appellant

or

petitioner

or

applicant

or

respondent

shall

file

three

authenticated

copies

of

appeal

or

petition

or

application

or

counter

or objections,

as

the

case

may

be,

and

shall

deliver

one

copy

to

each

of

the

opposite party

- Rule

24

of

NCLT

Rules,

2016

and

Rule

23

of

NCLAT

Rules,

2016.

3.3-3 Endorsement and Verification on petition or appealAt

the

foot

of

every

petition

or

appeal

or

pleading

there

shall

appear

the

name and

signature

of

the

authorised

representative.

Para 3.3 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 28

Page 8: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

Every petition

or

appeal

shall

be

signed

and

verified

by

the

party

concerned

in the

manner

provided

by

these

rules

- Rule

26

of

NCLT

Rules,

2016

and

Rule 24

of

NCLAT

Rules,

2016.

3.3-4 Translation of documentA

document

other

than

English

language

intended

to

be

used

in

any

proceeding

before

NCLT

or

NCLAT

shall

be

received

by

the

Registry accompanied

by

a

copy

in

English.

This

should

be

agreed

to

by

both the

parties

or

certified

to

be

a

true

translated

copy

by

(a)

authorised representative

engaged

on

behalf

of

parties

in

the

case

or

(b)

by

any

other

advocate or

authorised

representative

whether

engaged

in

the

case

or

not

or (c)

if the

advocate

or

authorised

representative

engaged

in

the

case

authenticates such

certificate

or

prepared

by

a translator

approved

for

the purpose

by

the

Registrar

on

payment

of

such

charges

as

he

may

order.

In case

of

NCLAT,

only

clause

(a)

applies

and

not

clause

(b)

or

(c).

Appeal or

petition

or

other

proceeding

shall

not

be

set

down

for

hearing

until and

unless

all

parties

confirm

that

all

the

documents

filed

on

which

they intend

to

rely

are

in

English

or

have

been

translated

into

English

and

required number

of

copies

are

filed

into

Tribunal

- Rule

27

of

NCLT

Rules,

2016 and

Rule

25

of

NCLAT

Rules,

2016.

3.3-5 Lodging of caveat before NCLTAny

person

may

lodge

a caveat

in

triplicate

in

any

appeal

or

petition

or

application that

may

be

instituted

before

NCLT

by

paying

the

prescribed

fee after

forwarding

a copy

by

registered

post

or

serving

the

same

on

the

expected petitioner

or

appellant.

Caveat

shall

be

in

the

form

prescribed

and

contain

such

details

and particulars

or

orders

or

directions,

details

of

authority

against

whose

orders

or directions

the

appeal

or

petition

or

application

is

being

instituted

by

the

expected appellant

or

petitioner

or

applicant

which

full

address

for

service

on other

side,

so

that

the

appeal

or

petition

or

application

could

be

served

before the

appeal

or

petition

or

interim

application

is

taken

up:

The caveat

shall

remain

valid

for

a period

of

ninety

days

from

the

date

of

its filing

- Rule

25

of

NCLT

Rules,

2016.

NCLT may

pass

interim

orders

in

case

of

urgency

in

case

of

lodging

of

caveat.

No provision for filing caveat before NCLAT - There

is

no

specific

provision

in NCLAT

Rules,

2016

for

filing

a caveat.

However,

it does

not

mean

that

Caveat cannot

be

filed.

29 PRESENTATION OF

PETITION

OR

APPEAL Para 3.3

Page 9: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

3.3-6 Interlocutory applicationsEvery

Interlocutory

application

for

stay,

direction,

condonation

of

delay,

exemption from

production

of

copy

of

order

appealed

against

or

extension

of time

prayed

for

in

pending

matters

shall

be

in

prescribed

form

(NCLT.1

accompanied by

such

attachments

thereto

along

with

Form

No.

NCLT.

3)

and the

requirements

prescribed

in

that

behalf

shall

be

complied

with

by

the applicant,

besides

filing

an

affidavit

supporting

the

application

- Rule

32 of

NCLT

Rules,

2016.

Every petition

or

application

including

interlocutory

application

shall

be

verified by

an

affidavit

in

Form

No.

NCLT.6.

Appeal against interim order of NCLT - Any

person

aggrieved

by

an

order

or decision

of

the

Tribunal

(NCLT)

may

prefer

an

appeal

to

the

Appellate

Tribunal. (NCLAT)

[section

421(1)

of

Companies

Act,

2013].

Since appeal

can

be

filed

against

any

order

or

decision,

appeal

can

be

filed

against interim

order

also.

In Purnima Manthena

v.

Dr Renuka Datla

(2015)

62

taxmann.com

89

(SC),

it

has

been

held

that

while

hearing

appeal

against

interim

order,

High Court

(now

NCLAT)

should

not

take

up

elaborate

exercise

of

appreciating

complete records

and

facts

of

the

case,

which

have

not

been

considered

by the

lower

authority.

Application to NCLAT for interlocutory orders - In case

of

NCLAT,

the

form prescribed

in

NCLAT.2

for

filing

interlocutory

applications

- Rule

31

of NCLAT

Rules,

2016.

3.3-7 The matters pending before CLB have been transferred to NCLTIf

matter

was

part

heard,

the

proceedings

shall

continue

from

that

stage.

However, if the

order

was

reserved

by

the

Company

Law

Board,

fresh

hearing will

take

place

- Rule

64(1)

of

NCLT

Rules,

2016.

A

fresh

petition

or

an

application

may

also

be

filed

in Form NCLT 1

corresponding to

those

provisions

of

the

Act,

if both

the

parties

thereto

so

consent with

the

approval

of

NCLT

while

withdrawing

the

proceedings

as

already continued

before

the

Company

Law

Board

and

serve

a copy

of

the petition

on

the

parties.

Procedure as

specified

in

rule

64

of

NCLT

Rules,

2016

shall

be

followed.

3.3-8 Petition or Application under section 45QA(2) of RBIProvisions

of

NCLT

rules

shall

apply,

mutatis mutandis, to

the

application

or petition

made

under

section

45QA(2)

of

RBI

Act

- Rule

65

of

NCLT

Rules, 2016.

Para 3.3 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 30

Page 10: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

3.3-9 Multiple reliefs on single cause of actionA petition

shall

be

based

upon

a single

cause

of

action

and

may

seek

one

or more

reliefs

provided

that

the

reliefs

are

consequential

to

one

another

- rule

38A

of

NCLT

Rules,

2016.

3.3-10 Special procedure for application under various provisionsSpecial

procedure

for

application

under

various

sections

of

Act

have

been

specified rules

66

to

88

of

NCLT

Rules,

2016.

These

are

discussed

under

each relevant

section.

3.4 Procedure after filing of appeal in office of NCLT and NCLATThe

procedure

at

office

of

NCLT

and

NCLAT,

after

filing

of

appeal

is

as

follows.

Endorsement and scrutiny of petition or appeal or document at time of filing -

The

person

in

charge

of

the

filing-counter

shall

immediately

on receipt

of

petition

or

appeal

or

application

or

document

affix

the

date

stamp of

Tribunal

thereon

and

also

on

the

additional

copies

of

the

index

and return

the

acknowledgement

to

the

party

and

he

shall

also

affix

his

initials on

the

stamp

affixed

on

the

first

page

of

the

copies

and

enter

the

particulars of

all

such

documents

in

the

register

after

daily

filing

and

assign

a diary

number

which

shall

be

entered

below

the

date

stamp

and

thereafter

cause it to

be

sent

for

scrutiny

- Rule

28(1)

of

NCLT

Rules,

2016

and

Rule

26(1) of

NCLAT

Rules,

2016.

Return or reject petition after scrutiny- If,

on

scrutiny,

the

appeal

or petition

or

application

or

document

is

found

to

be

defective,

such

document

shall, after

notice

to

the

party,

be

returned

for

compliance

and

if there

is

a failure

to

comply

within

seven

days

from

the

date

of

return,

the

same

shall

be placed

before

the

Registrar

who

may

pass

appropriate

orders

- Rule

28(3) and

28(4)

of

NCLT

Rules,

2016

and

Rule

26(2)

and

26(3)

of

NCLAT

Rules, 2016.

Appeal against

if any

person

is

aggrieved

of

the

decision

of

the

Registrar

or such

other

officer

officiating

as

the

Registrar

of

the

Benches,

an

appeal

against the

order

of

the

Registrar

shall

be

made

within

fifteen

days

of

the

making of

such

order

to

the

President

of

the

Principal

Bench

and

at

other

places to

any

Member

of

the

Bench

designated

by

the

President,

and

whose

decision thereon

shall

be

final

- Rule

63

of

NCLT

Rules,

2016.

There seems

to

be

no

specific

provision

in

NCLAT

Rules,

2016

for

such

appeal against

decision

of

Registrar.

Rectification of document filed - The

Registrar

may

for

sufficient

cause

return

the

said

document

for

rectification

or

amendment

to

the

party

31 PROCEDURE AFTER

FILING

OF

APPEAL Para 3.4

Page 11: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

filing the

same,

and

for

this

purpose

may

allow

to

the

party

concerned

such reasonable

time

as

he

may

consider

necessary

or

extend

the

time

for compliance.

Where the

party

fails

to

take

any

step

for

the

removal

of

the

defect

within

the time

fixed

for

the

same,

the

Registrar

may,

for

reasons

to

be

recorded

in writing,

decline

to

register

the

pleading

or

document

- Rule

28(4)

of

NCLT

Rules, 2016

and

Rule

26(4)

of

NCLAT

Rules,

2016.

3.4-1 Registration of proceedings admittedOn

admission

of

appeal

or

petition

or

caveat

or

application,

the

same

shall

be numbered

and

registered

in

the

appropriate

register

maintained

in

this

behalf and

its

number

shall

be

entered

therein

- Rule

29

of

NCLT

Rules,

2016 and

Rule

27

of

NCLAT

Rules,

2016.

3.4-2 Calling for recordsOn

the

admission

of

appeal

or

petition

or

application

the

Registrar

shall,

if so

directed

by

NCLT

or

NCLAT

(as

applicable),

call

for

the

records

relating

to the

proceedings

from

any

adjudicating

authority

and

retransmit

the

same - Rule

30

of

NCLT

Rules,

2016

and

Rule

29

of

NCLAT

Rules,

2016.

3.4-3 Procedure on production of defaced, torn or damaged documentsWhen

a document

produced

along

with

any

pleading

appears

to

be

defaced,

torn, or

in

any

way

damaged

or

otherwise

its

condition

or

appearance

requires special

notice,

a mention

regarding

its

condition

and

appearance

shall

be

made

by

the

party

producing

the

same

in

the

Index

of

such a

pleading

and

the

same

shall

be

verified

and

initialled

by

the

officer

authorized to

receive

the

same

- Rule

33

of

NCLT

Rules,

2016

and

Rule

32

of NCLAT

Rules,

2016.

3.4-4 General heading in all advertisement and noticesThe

general

heading

in

all

proceedings

before

NCLT,

in

all

advertisements

and notices

shall

be

in

Form

No.

NCLT.

4 - Rule

34(2)

of

NCLT

Rules,

2016.

There is

no

such

general

provision

in

NCLAT

Rules,

as

the

prescribed

forms

themselves indicate

the

general

heading.

3.4-5 Forms of petition or application or noticeEvery

petition

or

application

or

reference

shall

be

filed

in

form

as

provided

in Form

No.

NCLT.1

with

attachments

thereto

accompanied

by

Form

No.

NCLT.2. In

case

of

an

interlocutory

application,

the

same

shall

be

filed

in

Para 3.4 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 32

Page 12: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

Form No.

NCLT.1

accompanied

by

such

attachments

thereto

along

with

Form No.

NCLT.

3 - Rule

34(3)

of

NCLT

Rules,

2016.

Every petition

or

application

including

interlocutory

application

shall

be

verified by

an

affidavit

in

Form

No.

NCLT.6.

Notice to

be

issued

by

NCLT

to

the

opposite

party

shall

be

in

Form

NCLT-

5 - Rule

34(4)

of

NCLT

Rules,

2016.

In case

of

NCLAT,

the

appeal

shall

be

in

form

NCLAT.1.

3.4-6 Advertisement detailing petitionIf

any

application,

petition

or

reference

is

required

to

be

advertised,

it shall,

unless

NCLT

otherwise

orders,

or

these

rules

otherwise

provide,

be

advertised in

Form

NCLT.3A. not

less

than

fourteen

days

before

the

date

fixed for

hearing,

at

least

once

in

a vernacular

newspaper

in

the

principal

vernacular language

of

the

district

in

which

the

registered

office

of

the

company is

situate,

and

at

least

once

in

English

language

in

an

English

newspaper circulating

in

that

district.

Contents of

the

advertisement

are

as

specified

in

Rule

35(2)

of

NCLT

Rules,

2016.

Where the

advertisement

is

being

given

by

the

company,

then

the

same

may also

be

placed

on

the

website

of

the

company,

if any.

Affidavit with copy of advertisement -An affidavit

shall

be

filed

to

NCLT,

not less

than

three

days

before

the

date

fixed

for

hearing,

stating

whether

the petition

has

been

advertised

in

accordance

with

this

rule

and

whether

the notices,

if any,

have

been

duly

served

upon

the

persons

required

to

he

served. The

affidavit

shall

be

accompanied

with

such

proof

of

advertisement

or of

the

service,

as

may

be

available

- Rule

35(4)

of

NCLT

Rules,

2016.

Where the

requirements

of

this

rule

or

the

direction

of

NCLT,

as

regards

the advertisement

and

service

of

petition,

are

not

complied

with,

NCLT

may

either dismiss

the

petition

or

give

such

further

directions

as

it thinks

fit.

NCLT can dispense with advertisement - NCLT

may,

if it thinks

fit,

and

upon

an

application

being

made

by

the

party,

may

dispense

with

any advertisement

required

to

be

published

under

rule

35

- Rule

35(6)

of

NCLT

Rules, 2016.

3.4-7 Notice to Opposite PartyNCLT

shall

issue

notice

to

the

respondent

to

show

cause

against

the

application or

petition

on

a date

of

hearing

to

be

specified

in

the

Notice.

Such notice

in

Form

No.

NCLT.5

shall

be

accompanied

by

a copy

of

the

application with

supporting

documents.

33 PROCEDURE AFTER

FILING

OF

APPEAL Para 3.4

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Reply to notice - If

the

respondent

contests

to

the

notice

received

by

him,

he may,

either

in

person

or

through

an

authorised

representative,

file

a reply

accompanied with

an

affidavit

and

along

with

copies

of

such

documents

on

which it relies,

with

an

advance

service

to

the

petitioner

or

applicant,

to

the

Registry before

the

date

of

hearing.

Such

reply

and

copies

of

documents

shall form

part

of

the

record.

3.4-8 Ex parte disposal if respondent does not appearIf

the

respondent

does

not

appear

on

the

date

specified

in

the

notice

in

Form No.

NCLT.5,

NCLT,

after

according

reasonable

opportunity

to

the

respondent, shall

forthwith

proceed

ex-parte

to

dispose

of

the

application

- Rule

37(2)

of

NCLT

Rules,

2016.

Similar provision

has

been

made

in

Rule

49(1)

of

NCLT

Rules,

2016,

with

slightly different

wordings.

Provisions in NCLAT Rules in respect of Non-appearance of respondent and consequences

- Where

the

respondent,

despite

effective

service

of

summons

or

notice

on

him

does

not

appear

before

the

date

fixed

for hearing,

NCLAT

may

proceed

to

hear

the

appeal

ex-parte and

pass

final

order on

merits.

It is

open

to

NCLAT

to

seek

the

assistance

of

any

authorised

representative

as it deems

fit

in

case

the

matter

involves

intricate

and

substantial

questions

of law

having

wide

ramifications

- Rule

53

of

NCLAT

Rules,

2016.

3.4-9 Service of Notices and processesAny

notice

or

process

to

be

issued

by

NCLT

may

be

served

by

post

or

at

the e-mail

address

as

provided

in

the

petition

or

application

or

in

the

reply.

Notice can

be

served

by

hand

delivery

also.

Notice to

authorized

representative

shall

be

deemed

to

be

sufficient

notice

- Rule

38(5)

of

NCLT

Rules,

2016.

If notice

cannot

be

served,

NCLT

will

order

serving

notice

in

any

other

just

and convenient

manner.

Cost

of

such

notice

can

be

recovered

from

party

- Rule

38(6)

of

NCLT

Rules,

2016.

3.5 Production of Evidence by AffidavitThe

NCLT

may

direct

the

parties

to

give

evidence,

if

any,

by

affidavit. Affidavit

to

be

filed

before

NCLT

shall

be

in

Form

No.

NCLT.7

- Rule

39(3)

of NCLT

Rules,

2016.

Para 3.5 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 34

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3.5-1 Cross examination of deponent through video conferencingWhere

NCLT

considers

it necessary

in

the

interest

of

natural

justice,

it may

order cross-examination

of

any

deponent

on

the

points

of

conflict

either

through information

and

communication

technology

facilities

such

as

video

conferencing or

otherwise

as

may

be

decided

by

NCLT,

on

an

application

moved by

any

party

- Rule

39(2)

of

NCLT

Rules,

2016.

3.5-2 Production of additional evidence before NCLT which was not produced before inspectorThe

parties

to

the

proceedings

shall

not

be

entitled

to

produce

before

the Bench

additional

evidence,

either

oral

or

documentary,

which

was

in

the possession

or

knowledge

but

was

not

produced

before

the

Inspector,

appointed by

the

Central

Government

for

the

purpose

of

investigating

the

affairs

of

the

concerned

company,

during

investigation

under

Chapter XIV

of

the

Act.

However, if the

Bench

requires

any

additional

evidence

or

document

to

be

produced or

any

witness

to

be

examined

or

any

affidavit

to

be

filed

to

enable

it to

pass

orders

or

for

any

other

substantial

cause,

or

if the

Inspector

so

appointed for

the

said

purpose

has

not

given

sufficient

opportunity

to

the

party to

adduce

evidence,

the

Bench,

for

reasons

to

be

recorded,

may

allow

such document

to

be

produced

or

witness

to

be

examined

or

affidavit

to

be filed

or

may

allow

such

evidence

to

be

produced

- Rule

40(2)

of

NCLT

Rules, 2016.

Such

document

may

be

produced

or

such

witness

examined

or

such evidence

adduced

either

before

the

Bench

or

before

such

authority

as

the

Bench may

direct.

Additional evidence

or

document

shall

be

made

available

by

the

Bench

to

the parties

to

the

proceedings

other

than

the

party

adducing

the

evidence

and they

shall

be

afforded

an

opportunity

to

rebut

the

contents

of

the

said

additional evidence

- Rule

40(4)

of

NCLT

Rules,

2016.

3.5-3 Filing of Reply and other Documents by the RespondentsEach

respondent

may

file

his

reply

to

the

petition

or

the

application

and copies

of

the

documents,

either

in

person

or

through

an

authorised

representative, with

the

registry

as

specified

by

NCLT

- Rule

41(1)

of

NCLT

Rules, 2016.

A copy

of

the

reply

or

the

application

and

the

copies

of

other

documents

shall be

forthwith

served

on

the

applicant

by

the

respondent.

To

the

reply

or

documents

filed

under

rule

41(1),

the

respondent

shall specifically

admit,

deny

or

rebut

the

facts

stated

by

the

applicant

in

his

35 PRODUCTION OF

EVIDENCE

BY

AFFIDAVIT Para 3.5

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petition or

application

and

state

such

additional

facts

as

may

be

found

necessary in

his

reply

- Rule

41(3)

of

NCLT

Rules,

2016.

3.5-4 Filing of RejoinderWhere

the

respondent

states

such

additional

facts

as

may

be

necessary

for

the just

decision

of

the

case,

the

Bench

may

allow

the

petitioner

to

file

a rejoinder

to

the

reply

filed

by

the

respondent,

with

an

advance

copy

to

be

served upon

the

respondent

- Rule

42

of

NCLT

Rules,

2016.

3.5-5 NCLT can call for further information or evidenceNCLT

may

require

the

parties

or

any

one

or

more

of

them,

to

produce

such

further documentary

or

other

evidence

as

it may

consider

necessary

- (a)

for the

purpose

of

satisfying

itself

as

to

the

truth

of

the

allegations

made

in

the petition

or

application;

or

(b)

for

ascertaining

any

information

which,

in the

opinion

of

the

Bench,

is

necessary

for

the

purpose

of

enabling

it to

pass orders

in

the

petition

or

application

- Rule

43(1)

of

NCLT

Rules,

2016.

Additional evidence

can

be

submitted

in

electronic

form

also.

3.5-6 Allegation of forgeryIf

any

person

alleges

forgery

or

fabrication

of

any

statutory

records

in

matters of

oppression

and

mismanagement,

NCLT

can

allow

sending

of

records to

Central

Forensic

Science

Laboratory,

at

cost

of

party

alleging

fabrication - Rule

43(3)

of

NCLT

Rules,

2016.

3.6 Hearing of petition or applicationsNCLT

shall

notify

to

the

parties

the

date

and

place

of

hearing

of

the

petition

or application

in

such

manner

as

the

President

or

a Member

may,

by

general

or special

order,

direct.

[This

is

to

allow

circuit

benches]

- Rule

44(1)

of

NCLT Rules,

2016.

3.6-1 Recusal by memberFor

the

purpose

of

maintaining

the

high

standards

and

integrity

of

NCLT,

the President

or

a Member

of

NCLT

shall

recuse

himself,

if President

or

the

Member has

or

had

a personal,

familial

or

professional

relationship

or

if he

had previously

been

called

upon

in

another

capacity,

including

as

advisor,

representative, expert

or

witness

or

for

any

other

reason.

The President

or

any

Member

recusing

himself

may

record

reasons

for

recusal. However,

the

reason

shall

not

be

disclosed

to

any

party

- Rule

62

of NCLT

Rules,

2016.

Para 3.6 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 36

Page 16: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

3.6-2 Withdrawal of application or petitionAt

any

stage

prior

to

the

hearing

of

the

petition

or

application,

if

the applicant

desires

to

withdraw

his

petition

or

application,

he

shall

make

an

application to

that

effect

to

NCLT.

NCLT, on

hearing

the

applicant

and

if necessary,

such

other

party

arrayed

as

opposite parties

in

the

petition

or

the

application

or

otherwise,

may

permit

such withdrawal

upon

imposing

such

costs

as

it may

deem

fit

and

proper

for NCLT

in

the

interests

of

the

justice

- Rule

44

of

NCLT

Rules,

2016.

3.6-3 Preparation and publication of daily cause list by RegistryThe

Registry

shall

prepare

and

publish

on

the

notice

board

of

the

Registry

before the

closing

of

working

hours

on

each

working

day

the

cause

list

for

the next

working

day

and

subject

to

the

directions

of

the

President,

listing

of cases

in

the

daily

cause

list

shall

be

in

the

order

of

priority

as

specified

in rule

89(1)

of

NCLT

Rules,

2016

and

rule

33(1)

of

NCLAT

Rules,

2016,

unless otherwise

ordered

by

the

concerned

Bench.

The title

of

the

daily

cause

list

shall

consist

of

the

number

of

the

appeal

or petition,

the

day,

date

and

time

of

the

court

sitting,

court

hall

number

and the

coram

indicating

the

names

of

the

President.

Judicial

Member

and

Technical Member

constituting

the

Bench.

Against the

number

of

each

case

listed

in

the

daily

cause

list,

details

as

specified in

rule

89(3)

of

NCLT

Rules,

2013

and

rule

33(3)

of

NCLAT

Rules,

2016 shall

be

shown.

The objections

and

special

directions,

if any,

of

the

Registry

shall

be

briefly

indicated in

the

daily

cause

list

in

remarks

column,

whenever

compliance

is

required - Rule

89(4)

of

NCLT

Rules,

2016

and

rule

33(4)

of

NCLAT

Rules,

2016.

The Court

Master

will

call

the

cases

listed

in

the

cause

list

in

the

serial

under, unless

ordered

by

NCLT/NCLAT

(as

applicable)

- Rule

95

of

NCLT

Rules, 2016

and

rule

39

of

NCLAT

Rules,

2016

3.6-4 Statutes or citations for referenceThe

parties

or

legal

practitioners

shall,

before

the

commencement

of

the

proceedings for

the

day,

furnish

to

the

Court

Master

a list

of

law

journals,

reports, statutes

and

other

citations,

which

may

be

needed

for

reference

or photocopy

of

full

text

thereof

- Rule

94

of

NCLT

Rules,

2016

and

rule

38 of

NCLAT

Rules,

2016.

37 HEARING OF

PETITION

OR

APPLICATIONS Para 3.6

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3.6-5 Carry forward of cause list and adjournment of cases on account of non-sitting of a BenchIf

by

reason

of

declaration

of

holiday

or

for

any

other

unforeseen

reason,

the Bench

does

not

function

for

the

day,

the

daily

cause

list

for

that

day

shall, unless

otherwise

directed,

be

treated

as

the

daily

cause

list

for

the

next working

day

in

addition

to

the

cases

already

posted

for

that

day.

When the

sitting

of

a particular

Bench

is

cancelled

for

the

reason

of

inability

of a Member

of

the

Bench,

the

Registrar

shall,

unless

otherwise

directed,

adjourn the

cases

posted

before

that

Bench

to

a convenient

date

and

the

adjournment or

posting

or

directions

shall

be

notified

on

the

notice

board

of the

Registry

- Rule

90

of

NCLT

Rules,

2016

and

rule

34

of

NCLAT

Rules,

2016.

3.6-6 NCLT can call for information on affairs of companyDuring

any

proceedings

before

NCLT,

it

may

for

the

purpose

of

its knowledge,

call

upon

the

Registrar

of

Companies

to

submit

information

on the

affairs

of

the

company

on

the

basis

of

information

available

in

the

MCA 21

portal.

Reasons

for

such

directions

shall

be

recorded

in

writing

- Rule

45(5)

of

NCLT

Rules,

2016.

3.6-7 No audio or video recording of proceedings before NCLTThere

shall

be

no

audio

or

video

recording

of

the

Bench

proceedings

by

the

parties or

their

authorised

representatives

- Rule

45(6)

of

NCLT

Rules,

2016.

3.6-8 Oath to the witnessThe

Bench

Officer

or

the

Court

Officer,

as

the

case

may

be,

shall

administer

the following

oath

to

a witness

[Rule

47

of

NCLT

Rules,

2016].

“I do swear in the name of God/solemnly affirm that what I shall state shall he the truth and nothing but the truth.”

3.7 Party can appear before NCLT in person or through authorized representativeEvery

party

may

appear

before

a

Tribunal

in

person

or

through

an authorised

representative,

duly

authorised

in

writing

in

this

behalf

- Rule

45 of

NCLT

Rules,

2016.

The authorised

representative

shall

make

an

appearance

through

the

filing

of Vakalatnama

or

Memorandum

of

Appearance

in

Form

No.

NCLT.

12

representing the

respective

parties

to

the

proceedings.

Para 3.7 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 38

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No

legal

practitioner

or

authorised

representative

shall

be

entitled

to appear

and

act,

in

any

proceeding

before

NCLT

unless

he

files

into

Tribunal

vakalatnama

or

Memorandum

of

Appearance

as

the

case

may,

duly executed

by

or

on

behalf

of

the

party

for

whom

he

appears

- Rule

119

of

NCLT Rules,

2016.

3.7-1 Engaging another legal practitioner or authorized representativeA

legal

practitioner

proposing

to

file

a

Vakalatnama

or

Memorandum of

Appearance

as

the

case

may

be,

in

any

pending

case

or

proceeding

before NCLT

in

which

there

is

already

a legal

practitioner

or

authorised

representative on

record,

shall

do

so

only

with

the

written

consent

of

the

legal practitioner

or

the

authorised

representative

on

record.

When such

consent

is

refused,

he

can

appear

with

permission

of

NCLT.

The

NCLT shall

consider

application

only

after

service

of

such

application

on

the counsel

already

on

record

- Rule

120

of

NCLT

Rules,

2016.

3.7-2 An authorized representative cannot appear in matter where he had appeared or given advise to opposite partyA legal

practitioner

or

the

authorised

representative,

who

has

tendered

advice in

connection

with

the

institution

of

any

case

or

other

proceeding

before NCLT

or

has

drawn

pleadings

in

connection

with

any

such

matter

or has

during

the

progress

of

any

such

matter

acted

for

a party,

shall

not,

appear in

such

case

or

proceeding

or

other

matter

arising

therefrom

or

in

any matter

connected

therewith

for

any

person

whose

interest

is

opposed

to that

of

his

former

client.

He

can

so

appear

only

with

the

prior

permission

of NCLT

- Rule

121

of

NCLT

Rules,

2016.

3.7-3 Restriction on party’s right to be heard, if he has appointed authorised representativeThe

party

who

has

engaged

a legal

practitioner

or

authorised

representative

to

appear

for

him

before

NCLT

may

be

restricted

by

NCLT

in

making presentation

before

it - Rule

122

of

NCLT

Rules,

2016.

3.7-4 Empanelment of special authorised representatives, valuers or experts by the NCLTNCLT

may

draw

up

a panel

of

authorised

representatives

or

valuers

or

such other

experts

as

may

be

required

by

NCLT

to

assist

in

proceedings

before NCLT.

The President

may

call

upon

any

of

the

persons

from

panel

for

assistance

in the

proceedings

before

the

Bench,

if so

required.

39 PARTY CAN

APPEAR

BEFORE

NCLT Para 3.7

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The

remuneration

payable

and

other

allowances

and

compensation admissible

to

such

persons

shall

be

specified

in

consultation

with

NCLT

- Rule

123

of

NCLT

Rules,

2016.

3.7-5 Professional dress for the authorised representativesThe

authorised

representatives

shall

wear

the

same

professional

dress

as

prescribed in

their

Code

of

Conduct,

while

appearing

before

NCLT

- Rule

124 of

NCLT

Rules,

2016.

3.7-6 Appearance on behalf of Central Government, RD or ROCThe

Central

Government,

the

Regional

Director

or

the

Registrar

of

Companies or

Official

Liquidator

may

authorise

an

officer

or

an

Advocate

to represent

in

the

proceedings

before

NCLT.

The officer

authorised

by

the

Central

Government

or

the

Regional

Director

or the

Registrar

of

Companies

or

the

Official

Liquidator

shall

be

an

officer

not below

the

rank

of

Junior

Time

Scale

or

company

prosecutor

- Rule

45(4) of

NCLT

Rules,

2016.

3.7-7 Registration of authorised representative’s internsAny

intern

employed

by

an

authorised

representative

can

act

as

such

before

NCLT or

be

permitted

to

have

access

to

the

records

and

obtain

copies

of

the orders

of

a Bench

of

NCLT

in

which

the

authorised

representative

ordinarily appears,

only

if his

name

is

entered

in

the

register

of

interns

maintained by

the

Bench

- Rule

46(1)

of

NCLT

Rules,

2016.

An authorised

representative

desirous

of

registering

his

intern

shall

make

a petition

or

an

application

to

the

Registrar

in

Form NCLT 10 and

on

such

application being

allowed

by

the

Registrar,

his

name

shall

be

entered

in

the register

of

interns.

3.7-8 Amicus CuriaeNCLT

Tribunal

may

permit

any

person

or

persons,

including

the

professionals and

professional

bodies

to

render

or

to

communicate

views

to NCLT

as

amicus curiae on

any

point

or

points

or

legal

issues

as

the

case

may be

as

assigned

to

such

amicus curiae.

NCLT may

permit

amicus curiae to

have

access

to

the

pleading

the

parties

and NCLT

shall

enable

the

parties

to

submit

timely

observations

on

brief

provided by

the

amicus curiae.

NCLT shall

be

at

liberty

to

direct

either

of

the

parties

or

both

the

parties

to

the proceedings

involving

a point

on

which

the

opinion

of

the

amicus curiae

has been

sought,

to

bear

such

expenses

or

fee

as

may

be

ordered

by

NCLT.

Para 3.7 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 40

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The judgment

and

any

appended

opinions

shall

be

transmitted

to

the

parties

and to

amicus curiae -

Rule

61

of

NCLT

Rules,

2016.

3.8 Consequence of non-appearance of applicant or respondentIf,

on

the

date

fixed

for

hearing

of

the

petition

or

application

or

on

any

other date

to

which

such

hearing

may

be

adjourned,

the

applicant

does

not appear

when

the

petition

or

the

application

is

called

for

hearing,

the

NCLT may,

in

its

discretion,

either

dismiss

the

application

for

default

or

hear and

decide

it on

merit

- Rule

48(1)

of

NCLT

Rules,

2016.

There is

similar

provision

in

rule

20

of

CESTAT

Rules.

This rule

i.e.

rule

20

of

CESTAT

Rules

was

held

invalid

as

against

section

35C of

Central

Excise

Act

in

Balaji Steel Re-Rolling Mills

v.

CCE

(2014)

52

taxmann.com 107

=

49

GST

1 =

310

ELT

209

(SC

3 member

bench).

It

was

held that

Tribunal

can

confirm,

modify

or

annul

the

decision

or

remand

the

matter but

cannot

dismiss

appeal

for

non-prosecution

of

appeal

- followed

in Super Label

v.

UOI

(2015)

51

GST

763

=

59

taxmann.com

460

(Bom

HC

DB) * Afloat Textiles

v.

UOI

(2015)

325

ELT

719

(Bom

HC

DB).

Earlier, Income

Tax

Tribunal

Rules

(rule

No.

24)

also

specified

that

appeal

can be

dismissed

for

non-appearance

of

appellant.

This

provision

has

been

struck down

in

CIT

v.

S Chennippa Mudaliar -

AIR

1969

SC

1068

=

(1969)

1 SCC

591

=

74

ITR

41

(SC).

It

was

held

that

Tribunal

cannot

dismiss

appeal

for non-appearance.

It

has

to

give

decision.

In Viral Laminates P Ltd.

v.

UOI

1998(100)

ELT

335

(Guj

HC

DB),

holding

that Tribunal

can

pass

ex parte

order,

but

cannot

dismiss

the

appeal.

- same

view in

Prakash Fabricators

v.

UOI

2001(130)

ELT

433

(Del

HC

DB)

* Balar

Fabrics v.

UOI

2002(142)

ELT

309

(Raj

HC

DB)

* Rajendra Prasad Borah

v.

ITAT (2008)

174

Taxman

568

(Gau

HC).

In Chemipol

v.

UOI

(2009)

244

ELT

497

(Bom

HC

DB),

appeal

was

dismissed

as appellant

failed

to

appear

on

just

one

occasion.

Restoration

application

was dismissed

by

Tribunal.

It

was

held

that

Tribunal

can

dismiss

appeal/

proceeding

for

non-prosecution

unless

statute

clearly

requires

hearing and

decision

on

merits.

Tribunal

must

decide

appeal

on

merits

if appellant

files

written

submissions.

Tribunal

is

not

empowered

to

dismiss

appeal in

such

case.

Appeal

can

be

dismissed

if appellant

persistently

remains

absent

without notice

and

Tribunal

is

of

the

view

that

appellant

is

not

interested in

prosecuting

appeal.

It

was

held

that

though

rule

20

has

been

held unconstitutional

by

Delhi

High

Court,

every

Court

and

Tribunal

has

inherent powers

to

dismiss

appeal

for

non-prosecution

[Tribunal

was

asked

to restore

the

appeal].

If respondent

is

absent,

order

can

be

passed

ex parte,

after

giving

reasonable

opportunity of

hearing.

41 CONSEQUENCE OF

NON-APPEARANCE

OF

APPLICANT

OR

RESPONDENT Para 3.8

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3.8-1 Ex-parte Hearing and disposal if respondent does not appearIf,

on

the

date

fixed

for

hearing

the

petition

or

application

or

on

any

other

date to

which

such

hearing

may

be

adjourned,

the

applicant

appears

and

the respondent

does

not

appear

when

the

petition

or

the

application

is

called for

hearing,

the

NCLT

may

adjourn

the

hearing

or

hear

and

decide

the petition

or

the

application

ex-parte -

Rule

49(1)

of

NCLT

Rules,

2016.

Similar provision

has

been

made

in

Rule

37(2)

of

NCLT

Rules,

2016,

with

slightly different

wordings.

There is

parallel

provision

in

rule

53

of

NCLAT

Rules,

2016.

In

that

case,

it is

specifically

provided

that

NCLAT

can

take

assistance

of

any

authorized

representative if the

matter

involves

intricate

and

substantial

questions

of

law having

wide

ramifications.

3.8-2 Restoration if order was passed ex parteIf

a petition

or

an

application

has

been

heard

ex-parte against

a respondent

or respondents,

such

respondent

or

respondents

may

apply

to

NCLT

for

an order

to

set

it aside.

If such

respondent

or

respondents

satisfies

NCLT

that

the

notice

was

not

duly served,

or

that

he

or

they

were

prevented

by

any

sufficient

cause

from

appearing (when

the

petition

or

the

application

was

called)

for

hearing,

NCLT may

make

an

order

setting

aside

the

ex-parte hearing

as

against

him

or them

upon

such

terms

as

it thinks

fit.

However, if the

ex-parte hearing

of

the

petition

or

application

is

of

such

nature that

it cannot

be

set

aside

as

against

one

respondent

only,

it may

be set

aside

as

against

all

or

any

of

the

other

respondents

also

- Rule

49(2)

of NCLT

Rules,

2016.

Restoration of dismissed application - If

the

petition

or

application

has

been dismissed

for

default,

applicant

can

file

application

within

thirty

days

from the

date

of

dismissal

for

restoration,

giving

sufficient

cause

for

his

non-appearance. NCLT

can

restore

application

or

petition

- Rule

48(2)

of

NCLT Rules,

2016.

However, if the

case

was

disposed

of

on

merits

the

decision

shall

not

be

re-opened.

3.8-3 Summoning of witnesses and recording EvidenceIf

a petition

or

an

application

is

presented

by

any

party

to

the

proceedings

for summoning

of

witnesses,

NCLT

shall

issue

summons

for

the

appearance

of such

witnesses

unless

it considers

that

their

appearance

is

not

necessary

for the

just

decision

of

the

case.

Para 3.8 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 42

Page 22: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

If

summons

are

issued

by

NCLT

to

any

witness

to

give

evidence

or

to produce

any

document,

the

person

so

summoned

shall

be

entitled

to

such

travelling and

daily

allowance

sufficient

to

defray

the

travelling

and

other

expenses as

may

be

determined

by

the

Registrar

which

shall

be

deposited

by the

party

as

decided

by

the

Registrar.

3.8-4 Substitution of legal representatives if party dies or becomes insolventIf

a party

to

a

proceeding

pending

before

a

Bench

dies or

is

adjudged

insolvent or,

in

the

case

of

a company,

being

wound

up,

the

proceeding

shall

not abate

and

may

be

continued

by

or

against

the

executor,

administrator

or other

legal

representative

of

the

parties

or

by

or

against

the

assignee,

receiver or

liquidator,

as

the

case

may

be.

Normally, if appellant

dies,

the

appeal

abates

- Hari Prasad Chhapolia

v.

UOI (2008)

227

ELT

345

(SC)

[This

would

be

so

if only

rights

of

appellant

are involved].

3.8-5 Legal representatives can apply for substitutionIn

the

case

of

death

of

a party

during

the

pendency

of

the

proceedings

before NCLT,

the

legal

representative

of

the

deceased

party

may

apply

within ninety

days

of

the

date

of

such

death

for

being

brought

on

record.

If no

petition

or

application

is

received

from

the

legal

representatives

within

the period

specified,

the

proceedings

shall

abate.

However,

NCLT

can

allow

such substitution

even

after

90

days

- Rule

53(3)

of

NCLT

Rules,

2016.

3.8-6 Assessors or valuers can be appointed by NCLTIn

any

enquiry

into

a

claim,

NCLT

may

call

in

the

aid

of

assessor

or valuer,

not

exceeding

two

in

number,

who

possess

any

technical

or

special

knowledge with

respect

to

any

matter

before

NCLT

for

the

purpose

of

assisting NCLT.

An assessor

or

valuer

shall

perform

such

functions

as

NCLT

may

direct.

The remuneration,

if any,

to

be

paid

to

an

assessor

or

valuer

shall

in

every

case be

determined

by

NCLT

and

be

paid

by

it in

the

manner

as

may

be

specified by

NCLT

- Rule

54

of

NCLT

Rules,

2016.

3.8-7 Pleadings before NCLT after reply only with permission of NCLTNo

pleadings,

subsequent

to

the

reply,

shall

be

presented

except

by

the

leave of

NCLT

upon

such

terms

as

NCLT

may

think

fit

- Rule

55

of

NCLT

Rules, 2016.

43 CONSEQUENCE OF

NON-APPEARANCE

OF

APPLICANT

OR

RESPONDENT Para 3.8

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3.8-8 Application for execution of order passed by NCLTFor

execution

of

order

passed

by

NCLT,

the

holder

of

an

order

shall

make

an application

to

NCLT

in

Form

NCLT.8-

Rule

56

of

NCLT

Rules,

2016.

On

receipt

of

an

application

under

rule

56

NCLT

shall

issue

a

process for

execution

of

its

order

in

such

Form

as

provided

in

the

Code

of

Civil

Procedure, 1908.

NCLT

can

consider

objections

of

respondent

- Rule

57

of

NCLT Rules,

2016.

3.8-9 Effect of non-compliance of procedural rule does not vitiate proceedingsFailure

to

comply

with

any

requirement

of

these

rules

shall

not

invalidate

any proceeding,

merely

by

reason

of

such

failure,

unless

NCLT

is

of

the

view that

such

failure

has

resulted

in

miscarriage

of

justice

- Rule

58

of

NCLT Rules,

2016.

3.8-10 Procedure for imposition of penalty under the ActPenalty

can

be

imposed

only

on

issue

of

show

cause

notice

and

giving

opportunity of

personal

hearing,

as

specified

in

Rule

59

of

NCLT

Rules,

2016.

3.8-11 Procedure for signing of Orders by NCLTOnce

the

final

text

of

the

judgment

has

been

approved

and

adopted,

the

judgment shall

be

signed

and

dated

by

the

President

or

the

concerned

Members or

Member

and

the

Registrar,

and

shall

contain

the

names

of

the Members

who

have

taken

part

in

the

decision.

Any Member

differing

as

to

the

grounds

upon

which

the

judgment

was

based or

some

of

its

conclusions,

or

dissenting

from

the

judgment,

may

append a separate

or

dissenting

opinion

- Rule

60(2)

of

NCLT

Rules,

2016.

Reference to third member - In case

the

members

who

have

heard

the

case

are equally

divided

in

passing

the

order

or

judgment,

then

the

President

shall constitute

a Bench

as

per

section

419(5)

of

Companies

Act,

2013

- Rule

60 of

NCLT

Rules,

2016.

3.8-12 Registry to send certified copy of order free of costThe

Registry’

shall

send

a certified

copy

of

final

order

passed

to

the

parties

concerned free

of

cost

and

the

certified

copies

may

be

made

available

with

cost as

per

Schedule

of

fees,

in

all

other

cases

- Rule

50

of

NCLT

Rules,

2016.

Para 3.8 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 44

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3.8-13 Filing of Order of NCLT with the Registrar of CompaniesThe

certified

copy

of

the

order

passed

by

NCLT

shall

be

filed

by

the

company

in Form

INC-28

along

with

fee

of

Rupees

five

hundred

with

the

Registrar

of Companies

within

the

time

specified

in

the

Act

or

specified

by

NCLT.

Where no

time

limit

is

prescribed

by

NCLT,

such

order

shall

be

filed

within

thirty days

from

the

date

of

receipt

of

certified

copy

of

the

order

- Rule

161 of

NCLT

Rules,

2016.

There is

no

parallel

provision

in

NCLAT

Rules,

2016.

3.9 Reference or complaint to NCLT in Form NCLT 9Following

sections

make

provision

for

reference

or

complaint

to

NCLT

-

By the

Registrar

of

Companies

under

section

441

of

Companies

Act,

2013.

By the

Central

Government

under

proviso

to

sections

140(5),

221,

section

224(2),

section

224(5)

or

section

(2)

of

section

241(2)

of Companies

Act,

2013.

Reference section

75(2)

of

Companies

Act,

2013.

Complaint by

any

person

under

section

222(1)

of

Companies

Act,

2013.

Reference by

a company

under

section

22A(4)(c)

of

the

Securities

Contracts (Regulations)

Act,

1956.

Reference or complaint in form NCLT.9 -The

reference

or

complaint

shall

be made

by

way

of

a petition

or

application

in

Form

No.

NCLT-

9.

It

shall

be accompanied

by

documents

mentioned

in

Annexure

B

of

NCLT

Rules-

- Rule

88

of

NCLT

Rules,

2016.

3.10 Inspection of records by partiesThe

parties

to

any

case

or

their

authorised

representative

may

be

allowed

to inspect

the

record

of

the

case

by

making

an

application

in

writing

to

the

Registrar and

by

paying

the

fee

prescribed

- Rule

114(1)

of

NCLT

Rules,

2016 and

rule

57(1)

of

NCLAT

Rules,

2016.

Person who

is

not

a party

to

the

proceeding,

may

also

be

allowed

to

inspect

the proceedings

after

obtaining

the

permission

of

the

Registrar

in

writing,

subject to

such

terms

and

conditions

as

may

be

directed

by

the

President

by a general

or

special

order

- Rule

114(2)

of

NCLT

Rules,

2016

and

rule

57(2) of

NCLAT

Rules,

2016.

Inspection of

records

of

a pending

or

decided

case

before

NCLT

or

NCLAT

shall be

allowed

only

on

the

order

of

the

Registrar

- Rule

115

of

NCLT

Rules, 2016

and

rule

58

of

NCLAT

Rules,

2016.

45 INSPECTION OF

RECORDS

BY

PARTIES Para 3.10

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Application for inspection of records to Registrar

-

Application

for inspection

of

record

shall

be

presented

at

Registry

between

10.30

AM

and 3.00

PM

on

any

working

day

and

two

days

before

the

date

on

which

inspection is

sought,

unless

otherwise

permitted

by

the

Registrar.

In case

of

NCLT,

no

form

of

application

has

been

prescribed.

In

case

of

NCLAT, the

application

should

be

in

form

NCLAT.3

- Rule

59(1)

of

NCLAT

Rules, 2016.

The

Registry

shall

submit

the

application

with

its

remarks

before

the Registrar,

who

shall,

on

consideration

of

the

same,

pass

appropriate

orders.

Inspection of

records

of

a pending

case

shall

not

ordinarily

be

permitted

on the

date

fixed

for

hearing

of

the

case

or

on

the

preceding

day

- Rule

116 of

NCLT

Rules,

2016.

3.10-1 Mode of inspection of recordsThe

Deputy

Registrar

shall

arrange

to

procure

the

records

of

the

case

and

allow inspection

of

such

records

on

the

date

and

time

fixed

by

the

Registrar

between 10.30

AM

and

12.30

PM

and

between

2.30

PM

and

4.30

PM

in

the

immediate presence

of

an

officer

authorised

in

that

behalf

by

the

Registrar

- Rule

117(1)

of

NCLT

Rules,

2016

and

rule

61(1)

of

NCLAT

Rules,

2016.

The person

inspecting

the

records

shall

not

in

any

manner

cause

dislocation,

mutilation, tampering

or

damage

to

the

records

in

the

course

of

inspection.

Notes only by pencil - no copies - The

person

inspecting

the

records

shall

not make

any

marking

on

any

record

or

paper

so

inspected

and

taking

notes,

if any,

of

the

documents

or

records

inspected

may

be

done

only

in

pencil

- Rule

117(3)

of

NCLT

Rules,

2016

and

rule

61(3)

of

NCLAT

Rules,

2016.

The person

supervising

the

inspection,

may

at

any

time

prohibit

further

inspection, if in

his

opinion,

any

of

the

records

are

likely

to

be

damaged

in

the process

of

inspection

or

the

person

inspecting

the

records

has

violated

or attempted

to

violate

the

provisions

of

these

rules

and

shall

immediately

make a report

about

the

matter

to

the

Registrar

and

seek

further

orders

from the

Registrar

and

such

notes

shall

be

made

in

the

Inspection

Register.

3.10-2 Maintenance of register of inspectionThe

Deputy

Registrar

shall

cause

to

maintain

a Register

for

the

purpose

of

inspection of

documents

or

records

and

shall

obtain

therein

the

signature

of the

person

making

such

inspection

on

the

Register

as

well

as

on

the

application on

the

conclusion

of

inspection

- Rule

118

of

NCLT

Rules,

2016

and rule

62

of

NCLAT

Rules,

2016.

Para 3.10 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 46

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3.11 AffidavitsEvery

affidavit

shall

be

titled

as

‘Before

the

National

Company

Law

Tribunal’

or ‘Before

the

National

Company

Law

Appellate

Tribunal’

(as

applicable).

It shall

be

followed

by

the

cause

title

of

the

appeal

or

application

or

other

proceeding in

which

the

affidavit

is

sought

to

be

used

- Rule

125

of

NCLT

Rules, 2016

and

rule

67

of

NCLAT

Rules,

2016.

The affidavit

shall

conform

to

the

requirements

of

order

XIX,

rule

3 of

Civil Procedure

Code,

1908

- Rule

126

of

NCLT

Rules,

2016

and

rule

of

NCLAT Rules,

2016.

In case

of

NCLAT,

affidavit

shall

be

in

form

NCLAT.4

and

shall

conform

to

the requirements

of

order

XIX,

rule

3 of

Civil

Procedure

Code,

1908

- Rule

68 of

NCLAT

Rules,

2016.

Affidavits shall

be

sworn

or

affirmed

before

an

advocate

or

notary,

who

shall affix

his

official

seal

- Rule

127

of

NCLT

Rules,

2016

and

rule

69

of

NCLAT Rules,

2016.

Affidavits of illiterate, visually challenged persons - Where an

affidavit

is sworn

or

affirmed

by

any

person

who

appears

to

be

illiterate,

visually

challenged or

unacquainted

with

the

language

in

which

the

affidavit

is

written, the

attester

shall

certify

that

the

affidavit

was

read,

explained

or

translated by

him

or

in

his

presence

to

the

deponent

and

that

he

seemed

to understand

it,

and

made

his

signature

or

mark

in

the

presence

of

the

attester in

form

NCLT

14.

In

case

of

NCLAT,

the

affidavit

shall

be

in

form

NCLAT.5 - Rule

128

of

NCLT

Rules,

2016

and

rule

70

of

NCLAT

Rules,

2016.

Identification of deponent if attester does not know deponent - If the

deponent is

not

known

to

the

attester,

his

identity

shall

be

testified

by

a person

known

to

him

and

the

person

identifying

shall

affix

his

signature

in token

thereof

- Rule

129

of

NCLT

Rules,

2016

and

rule

71

of

NCLAT

Rules, 2016.

Annexures to the affidavit shall also be attested by attester with endorsement - Document

accompanying

an

affidavit

shall

be

referred

to

therein as

Annexure

number

and

the

attester

shall

make

the

endorsement

thereon that

this

is

the

document

marked

putting

the

Annexure

number

in the

affidavit.

The

attester

shall

sign

therein

and

shall

mention

the

name

and his

designation

- Rule

130

of

NCLT

Rules,

2016

and

rule

72

of

NCLAT

Rules, 2016.

3.11-1 Where affidavit can be sworn in winding upAny

affidavit

required

for

purposes

of

liquidation

can

be

sworn

in

India

or abroad

before

any

Court,

NCLT,

Judge

or

person

lawfully

authorised

to take

and

receive

affidavits.

In

case

of

other

country,

affidavit

can

also

47 AFFIDAVITS Para 3.11

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be sworn

before

Indian

Diplomatic

or

consular

officer

- section

355(1)

of

Companies Act,

2013

[section

558(1)

of

2013

Act].

All Courts,

Tribunals,

Commissioners

and

Judges

in

India

shall

take

judicial

notice of

such

affidavit

sworn

before

authorised

persons

- section

355(2)

of Companies

Act,

2013

[section

558(2)

of

2013

Act].

Thus, the

affidavit

is

required

to

be

admitted

as

evidence.

3.12 Discovery, production and return of documentsExcept

otherwise

provided

otherwise,

discovery

or

production

and

return

of documents

shall

be

regulated

by

the

provisions

of

the

Code

of

Civil

Procedure, 1908

- Rule

131(1)

of

NCLT

Rules,

2016

and

rule

73(1)

of

NCLAT

Rules, 2016.

Application for summons to produce documents

-

An

application

for summons

to

produce

documents

shall

be

on

plain

paper

setting

out

the

document the

production

of

which

is

sought,

the

relevancy

of

the

document

and

in

case

where

the

production

of

a

certified

copy

would

serve

the purpose,

whether

application

was

made

to

the

proper

officer

and

the

result

thereof - Rule

131(2)

of

NCLT

Rules,

2016

and

rule

73(2)

of

NCLAT

Rules,

2016.

A

summons

for

production

of

documents

in

the

custody

of

a

public officer

other

than

a court

shall

be

in

Form

NCLT-15

[In

case

of

NCLAT,

no

specific form

has

been

prescribed]. The

application

shall

be

addressed

to

the concerned

Head

of

the

Department

or

such

other

authority

as

may

be

specified by

NCLT

- Rule

131(2)

of

NCLT

Rules

and

Rule

73(6)

of

NCLAT

Rules, 2016.

Suo motu summoning of documents - Notwithstanding anything

contained

in these

rules,

NCLT

may,

suo motu, issue

summons

for

production

of

public

document or

other

documents

in

the

custody

of

a public

officer

- Rule

132

of NCLT

Rules,

2016

In case

of

NCLAT,

may,

suo motu, issue

summons

for

production

of

public

document or

other

documents

in

the

custody

of

a public

officer

in

Form

NCLAT-6. - Rule

74

of

NCLAT

Rules,

2016.

Marking of documents received after issue of summons - The documents

when

produced

shall

be

marked

as

follows

-

(a)

If

relied

upon

by

the appellant’s

or

petitioner’s

side,

they

shall

be

numbered

as

‘A’

series

(b)

If

relied upon

by

the

respondent’s

side,

they

shall

be

marked

as

‘B’

series

(c)

NCLT exhibits

shall

be

marked

as

‘C’

series

- Rule

133(1)

of

NCLT

Rules,

2016 and

rule

75

of

NCLAT

Rules,

2016.

Costs for transmission of records to applicant - NCLT

may

direct

the

applicant to

deposit

with

NCLT

by

way

of

Demand

Draft

or

Indian

Postal

Para 3.12 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 48

Page 28: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

Order

drawn

in

favour

of

the

Pay

and

Accounts

Officer,

Ministry

of Corporate

Affairs,

New

Delhi,

a sum

sufficient

to

defray

the

expenses

for

transmission of

the

records

before

the

summons

is

issued

- Rule

133(2)

of

NCLT Rules,

2016.

Return and transmission of documents - An application

for

return

of

the

documents

produced

shall

be

numbered.

Such application

shall

be

entertained after

the

destruction

of

the

records

[really,

it should

be

‘shall

not be

entertained’.

If

records

are

destroyed,

how

these

can

be

returned?]

NCLT or

NCLAT

(as

applicable)

may,

at

any

time,

direct

return

of

documents

produced subject

to

such

conditions

as

it deems

fit

- Rule

134

of

NCLT

Rules, 2016

and

Rule

76

of

NCLAT

Rules,

2016.

3.13 Examination of witnesses and issue of commissionsSection

300

of

Companies

Act,

2013

make

specific

provisions

relating

to

examination of

persons

in

case

of

fraud

during

winding

up

proceedings.

Even in

other

cases,

it may

become

necessary

to

examine

witnesses.

The provisions

of

the

Orders

XVI

and

XXVI

of

the

Code

of

Civil

Procedure,

1908,

shall

mutatis mutandis apply

in

the

matter

of

summoning

and enforcing

attendance

of

any

person

and

examining

him

on

oath

and

issuing commission

for

the

examination

of

witnesses

or

for

production

of

documents - Rule

135

of

NCLT

Rules,

2016

and

rule

77

of

NCLAT

Rules,

2016.

Examination in camera - NCLT

or

NCLAT

(as

applicable)

may

in

its discretion

examine

any

witness

in

camera

- Rule

136

of

NCLT

Rules,

2016

and rule

77

of

NCLAT

Rules,

2016.

Form of oath or affirmation to witness- Oath shall

be

administered

to

a witness

in

the

following

form

: -I do swear in the name of God/solemnly

affirm that what I shall state shall be truth, the whole truth and nothing ‘but the truth’. -

Rule

137

of

NCLT

Rules,

2016

and

rule

78

of

NCLAT

Rules,

2016.

Form of oath or affirmation to interpreter - Oath or

solemn

affirmation

shall

be

administered

to

the

interpreter

in

the

following

form

before the

Bench

Officer

or

the

Court

Officer

as

the

case

may

be,

as

taken

for

examining a witness:

- “I do swear in the name of God/solemnly affirm

that I will faithfully and truly interpret and explain all questions put to and evidence given by witness and translate correctly and accurately all documents given to me for translation.” -

Rule

138

of

NCLT

Rules,

2016

and rule

80

of

NCLAT

Rules,

2016.

Officer to administer oath - The oath

or

affirmation

shall

be

administered

by the

Court

Master.

In

case

of

NCLAT,

the

oath

can

be

administered

by

49 EXAMINATION OF

WITNESSES

AND

ISSUE

OF

COMMISSIONS Para 3.13

Page 29: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

Court Master

of

Branch

Officer

- Rule

139

of

NCLT

Rules,

2016

and

rule

81 of

NCLAT

Rules,

2016

[The

words

‘branch

officer’

in

case

of

NCLAT

seems to

be

a mistake]

3.13-1 Recording of depositionThe

Deposition

of

a witness

shall

be

recorded

in

form

NCLT.16

in

case

of

NCLT and

in

form

NCLAT.7

in

case

of

NCLAT.

Each

page

of

the

deposition

shall be

initialed

by

the

Members

constituting

the

Bench.

Corrections, if any,

pointed

out

by

the

witness

may,

if the

Bench

is

satisfied,

be carried

out

and

duly

initialled.

If

not

satisfied,

a note

to

the

effect

be

appended at

the

bottom

of

the

deposition

- Rule

140

of

NCLT

Rules,

2016

and rule

82

of

NCLAT

Rules,

2016.

3.13-2 Numbering of witnessesThe

witnesses

called

by

the

applicant

or petitioner

shall

be

numbered

consecutively as

PWs

and

those

by

the

respondents

as

RWs

- Rule

141

of

NCLT Rules,

2016

and

rule

85

of

NCLAT

Rules,

2016.

3.13-3 Grant of discharge certificate to witnessWitness

discharged

by

NCLT

may

be

granted

a certificate

in

form

NCLT-17

in case

of

NCLT

and

form

NCLAT.8

in

case

of

NCLAT.

The

discharge

will

be granted

by

the

Registrar

- Rule

142

of

NCLT

Rules,

2016

and

rule

84

of

NCLAT Rules,

2016.

3.13-4 Allowance payable to witness for attending examination and cross examinationWhere

NCLT

or

NCLAT

(as

applicable)

issues

summons

to

a Government

servant to

give

evidence

or

to

produce

documents,

the

person

so

summoned

may draw

from

the

Government

travelling

and

daily

allowances

admissible

to him

as

per

rules.

Where there

is

no

provision

for

payment

of

Travelling

Allowances

and

Daily

Allowance by

the

employer

to

the

person

summoned

to

give

evidence

or

to produce

documents,

he

shall

be

entitled

to

be

paid

as

allowance,

(a

sum

in the

opinion

of

the

Registrar

sufficient

to

defray

the

travelling

and

other

expenses), having

regard

to

the

status

and

position

of

the

witness

- Rule

143(2) of

NCLT

Rules,

2016

and

rule

85(2)

of

NCLAT

Rules,

2016.

Party applying for summons to deposit amount for witness allowance -

The

party

applying

for

the

summons

shall

deposit

with

the

Registrar

the amount

of

allowance

as

estimated

by

the

Registrar

well

before

the

summons is

issued.

Para 3.13 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 50

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If the

witness

is

summoned

as

a court

witness,

the

amount

estimated

by

the Registrar

shall

be

paid

as

per

the

directions

of

NCLT.

The

aforesaid

provisions

would

govern

the

payment

of

batta (travel allowance

for

attending)

to

the

interpreter

also

- Rule

143(5)

of

NCLT

Rules,

2016 and

rule

85(5)

of

NCLAT

Rules,

2016.

3.13-5 Records to be furnished to the Commissioner who is recording examination of witnessThe

Commissioner

shall

be

furnished

by

NCLT

or

NCLAT

(as

applicable)

with

such

of

the

records

of

the

case

as

NCLT

considers

necessary

for executing

the

Commission.

Original

documents

shall

be

furnished

only

if

a

copy

does

not

serve the

purpose

or

cannot

be

obtained

without

unreasonable

expense

or

delay

and

delivery

and

return

of

records

shall

be

made

under

proper acknowledgement

- Rule

144

of

NCLT

Rules,

2016

and

rule

86

of

NCLAT

Rules, 2016.

Taking of specimen handwriting, signature etc. by Commissioner - The

Commissioner

may,

if necessary,

take

specimen

of

the

handwriting,

signature or

fingerprint

of

any

witness

examined

before

him

- Rule

145

of

NCLT Rules,

2016

and

rule

87

of

NCLAT

Rules,

2016.

3.14 Disposal of cases and pronouncement of ordersNCLT

will

pass

order

and

NCLAT

shall

deliver

judgments

after

hearing

parties - rule

146

of

NCLT

Rules

and

rule

88

of

NCLAT

Rules.

NCLT can

summarily

dismiss

appeal

on

sufficient

grounds

- rule

146

of

NCLT Rules,

There is

no

such

provision

in

NCLAT

Rules.

The final

decision

of

NCLAT

on

an

appeal

or

proceedings

before

NCLAT

shall be

delivered

by

way

of

Judgment

- Rule

88

of

NCLAT

Rules,

2016.

All orders

or

directions

of

the

Bench

shall

be

stated

in

clear

and

precise

terms in

the

last

paragraph

of

the

order

- Rule

147

of

NCLT

Rules

and

Rule

89 of

NCLAT

Rules,

2016.

Corrections of orders by NCLT/NCLAT bench - The

Member

of

the Bench

who

has

prepared

the

order

shall

initial

all

corrections

and

affix

his

initials at

the

bottom

of

each

page

- Rule

148

of

NCLT

Rules

and

Rule

90

of NCLAT

Rules,

2016.

51 DISPOSAL OF

CASES

AND

PRONOUNCEMENT

OF

ORDERS Para 3.14

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3.14-1 Pronouncement of order by NCLT/NCLATNCLT

shall

make

pronounce

order

at

once

after

conclusion

of

hearing

or

at the

most

in

30

days

from

final

hearing

- rule

150(1)

of

NCLT

Rules,

2016.

NCLAT

shall

as

far

as

possible

pronounce

the

order

immediately

after the

hearing

is

concluded.

When

the

orders

are

reserved,

the

date

for

pronouncement of

order

shall

be

notified

in

the

cause

list

which

shall

be

a valid

notice

of

intimation

of

pronouncement.

Reading

of

the

operative

portion of

the

order

in

the

open

court

shall

be

deemed

to

be

pronouncement

of the

order

- Rule

91

of

NCLAT

Rules,

2016.

Requirements of order of Tribunal - (a) The

order

must

decide

on

all

the

points raised

by

parties

(b)

A point

not

raised

in

appeal

cannot

be

decided

(c) Validity

of

an

order

can

be

adjudged

on

the

grounds

mentioned

in

the

order and

not

on

other

grounds

(d)

The

order

should

be

speaking

i.e.

with

reasons and

in

writing.

3.14-2 Pronouncement of order by any one member of the BenchAny

Member

of

NCLT/NCLAT

may

pronounce

the

order

for

and

on

behalf

of the

Bench.

When

an

order

is

pronounced

under

this

rule,

the

Court

Master

shall make

a note

in

the

order

sheet,

that

the

order

of

the

Bench

consisting

of

Chairperson and

Members

was

pronounced

in

open

court

on

behalf

of

the Bench-Rule

131

of

NCLAT

Rules

and

Rule

92

of

NCLAT

Rules,

2016.

3.14-3 Authorizing any Member to pronounce orderIf

the

Members

of

the

Bench

who

heard

the

case

are

not

readily

available

or have

ceased

to

be

Members

of

NCLAT/NCLAT,

the

President

of

NCLT/

Chairperson of

NCLAT

(as

applicable)

may

authorise

any

other

Member

to pronounce

the

order

on

his

behalf

after

being

satisfied

that

the

order

has been

duly

prepared

and

signed

by

all

the

Members

who

heard

the

case

and the

order

pronounced

by

the

Member

so

authorised

shall

be

deemed

to be

duly

pronounced.

The Member

so

authorised

for

pronouncement

of

the

Order

shall

affix

his

signature in

the

Order

sheet

of

the

case

stating

that

he

has

pronounced

the order

as

provided

in

this

rule.

If the

Order

cannot

be

signed

by

reason

of

death,

retirement

or

resignation

or for

any

other

reason

by

any

one

of

the

Members

of

NCLAT

who

heard

the case,

it shall

be

deemed

to

have

been

released

from

part-heard

and

listed afresh

for

hearing

- Rule

152

of

NCLT

Rules

and

Rule

93

of

NCLAT

Rules, 2016.

Para 3.14 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 52

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3.14-4 Oral order dictated in Court finalWhen

a judgment

is

pronounced

in

open

court,

parties

act

on

the

basis

that it is

the

judgment

and

that

signing

is

a formality

to

follow.

Oral

order

dictated in

open

Court

is

final,

in

the

absence

of

exceptional circumstances

- Vinod Kumar Singh

v.

Banaras Hindu University

- AIR

1988

SC

371.

* Surendra Singh

v.

State of UP

- AIR

1954

SC

194.

Once Tribunal

announces

in

open

Court

‘Appeal

Allowed’,

the

order

cannot

be reopened

by

Tribunal

later

- CCE

v. C.P. Aqua Culture

(2013)

290

ELT

202 (Mad

HC

EB).

3.14-5 Order of CESTAT should be complete with reasonsSometimes,

Tribunals

announce

operating

part

of

the

order

first

and

reasons

are

given

later.

This

practice

has

been

highly

depreciated

by Supreme

Court

in

case

of

High

Courts.

Hence,

Delhi

High

Court

in

Megha

Exports

v.

CEGAT -

1994

(72)

ELT

241

(Del

HC),

has

stated

that

it

will appreciate

if entire

order

- operative

portion

as

well

as

reasons

is

passed

instead of

passing

two

separate

orders.

In State of Punjab

v.

Jagdev Singh Talwandi

(1984)

1 SCC

596

=

AIR

1984

SC 444

(Constitution

Bench)

also,

practice

of

giving

final

order

by

High

Court without

giving

reasons

at

the

time

of

passing

order

was

depreciated,

as this

puts

Supreme

Court

in

a predicament

when

appeal

is

filed

- quoted

in Zahira Habibulla H Sheikh

v.

State of Gujarat

2004

AIR

SCW

2325.

Every quasi

judicial

order

must

be

supported

by

reason.

Order

must

be

a speaking

order

- Kishan Lal

v.

UOI

1998

AIR

SCW

615

=

97

Taxman

556

(SC) * Rajesh Kumar

v.

Dy CIT

(2007)

2 SCC

181

=

157

Taxman

168

=

287

ITR 91

(SC)

* State of Himachal Pradesh

v.

Paras Ram AIR

2008

SC

* Kranti

Associates v.

Masood Ahmed Khan

(2010)

9 SCC

496

=

273

ELT

345

(SC)

* Ravi Yashwant Bhoir

v.

District Collector

(2012)

4 SCC

407

* Manohar

v.

State of Maharashtra (2013) 120

SCL

179

=

35

taxmann.com

67

(SC).

Reason is

the

heartbeat

of

every

conclusion.

Without

the

same,

it becomes

lifeless - Ram Phal

v.

State of Haryana

(2009)

3 SCC

258

- same

view

in

State of Uttaranchal v.

Sunil Kumar Singh

AIR

2008

SC

2026

* Secretary

and Curator, Victoria Memorial Hall v.

Howrah Ganatantrik Nagrik Samity

(2010) 3 SCC

732

=

AIR

2010

SC

1285

(SC

3 member

bench)

* UP State

Road Transport Corpn v.

Suresh Chand Sharma

(2010)

6 SCC

555

=

2010

LLR 760

(SC).

The order

should

be

speaking

i.e.

with

reasons

and

in

writing.

In

CIT

v.

Walchand & Co. P Ltd. - (1967)

65

ITR

381

(SC),

it was

held

that

Tribunal

should give

decisions

with

reasons

- same

view

in

CCE

v.

Chandubhau

Shiroya (2009)

234

ELT

24

(Guj

HC

DB)

* CCE

v.

Vishesh Dhatu Industries

(2008) 222

ELT

337

(Bom

HC

DB)

* UOI

v.

Real Slotted Angles Company

53 DISPOSAL OF

CASES

AND

PRONOUNCEMENT

OF

ORDERS Para 3.14

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(2010) 252

ELT

329

(Bom

HC

DB).

* CCE

v.

Mahindra and Mahindra

(2010)

252 ELT

330

(Bom

HC

DB)

* CC

v.

Essar Oil

(2010)

256

ELT

204

(Guj

HC

DB) * CCE

v.

Chandubhau Shiroya

(2010)

27

STT

422

(Guj

HC

DB)

* CC

v.

Wartsila India Ltd. (2010)

254

ELT

406

(Bom

HC

DB)

* Shapoorji Pallonji

v. CCE

(2011)

263

ELT

206

(Bom

HC

DB)

* CCE v.

JSW Steel Ltd. (2014)

47

GST 29

=

47

taxmann.com

403

(Bom

HC

DB)

* Areva T&D India

v.

CESTAT

(2014) 306

ELT

444

(Mad

HC

DB).

Order should

not

be

mere

reproduction

of

submissions.

Mere

reliance

on

earlier decision

is

not

sufficient

- Anil Products

v.

CCE

(2010)

257

ELT

523

(Guj HC

DB).

Order of

appellate

authority

should

be

with

reasons,

to

indicate

application

of mind.

Affected

party

should

know

why

decision

went

against

him

- Steel

Authority of India v.

Sales Tax Officer

(2008)

15

STT

449

=

16

VST

181

(SC).

High

Court

should

give

at

least

brief

reasons

while

deciding

whether question

of

law

is

involved

- Chandna Impex

v.

CC

(2011)

269

ELT

433

(SC).

In Vasudeo Vishwanath Saraf

v.

New Education Institute

AIR

1986

SC

2105, it was

observed,

‘It

is

not

necessary

that

order

must

be

a lengthy

one

recording all

the

reasons

that

played

in

mind

of

the

Court

in

coming

to

the decision.

What

is

required

is

that

the

order

must

in

a nutshell

record

the relevant

reason

which

were

taken

into

consideration

in

coming

to

the

decision. - quoted

in

Gopal Mills

v.

CCE

2002(146)

ELT

212

(CEGAT).

Reasons need not be repeated if it agrees with reasons of lower authorities -

Appellate

or

revisional

authority

need

not

give

separate

reasons

if it agrees

with the

reasons

contained

in

the

order

under

challenge.

- S N Mukherjee

v.

UOI - (1990)

4 SCC

594

=

AIR

1990

SC

1984

(Constitution

Bench)

- followed

in Popular Engg

v.

ITAT

(2001)

119

Taxman

51

(P&H

HC

DB)

- same

view

in CIT

v.

K Y Pilliah

(1967)

63

ITR

411

(SC).

3.14-6 Proceedings recorded by Tribunal/Court are conclusive and cannot be challenged in other forumProceedings

recorded

by

Tribunal/court

cannot

be

challenged

in

another

forum, unless

steps

are

taken

before

the

same

forum

- Bhagwati Prasad

v.

DSMDC AIR

1990

SC

371

- quoted

in

Deeksha Suri

v. ITAT

1998(102)

ELT

524 =

100

Taxman

573

(Del

HC

DB).

- same

view

in

State of Maharashtra

v. Ramdas Shrinivas Nayak

AIR

1982

SC

1249

=

1982(2)

SCC

463

- quoted

with approval

in

D P Chadha

v.

Triyugi Narain Mishra

(2002)

38

SCL

699

(SC 3 member

bench)

- same

view

in

Metroark Ltd.

v.

CCE

2004

AIR

SCW

2304 =

164

ELT

225

(SC)

* CC

v.

Bureau Veritas

AIR

2005

SC

1292

=

181

ELT 3 (SC

3 member

bench).

Para 3.14 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 54

Page 34: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

In India Cement Ltd.

v.

CCE

(2015)

326

ELT

511

(Mad

HC

DB),

Tribunal

recorded that

assessee

has

not

pressed

point

on

merit.

Assessee

contended

that no

such

concession

was

given

at

the

time

of

hearing.

It

was

stated

that

assessee should

move

the

Tribunal

itself

for

modification

of

order

if there

is an

error

of

fact.

Factual

aspects

cannot

be

challenged

before

High

Court.

In Central Bank of India

v.

Vrajlal Kapurchand Gandhi

2003

AIR

SCW

3485

= AIR

2003

SC

3028,

it was

held

that

statement

of

facts

as

to

what

transpired

at the

hearing,

recorded

in

the

judgment

of

the

Court,

are

conclusive

of

the facts

and

no

one

can

contradict

such

statements

by

affidavit

or

other

evidence. The

party

should

call

attention

of

the

very

judges

who

have

made

the record.

It

cannot

be

disputed

in

appeal.

Appellate

Authority

(Supreme

Court in

this

case)

cannot

enter

into

enquiry

as

to

what

transpired

at

the

time of

hearing.

It

is

simply

not

done.

- same

view

in

Guruvayur Devaswom

Managing Committee v.

C K Rajan 2003

AIR

SCW

6039

(SC

3 member

bench) * Roop Kumar

v.

Mohan Thedani

2003

AIR

SCW

2425

=

AIR

2003

SC

2418 - also

in

State of Maharashtra

v.

Ramdas Shrinivas Nayak

AIR

1982

SC

1249 =

1982(2)

SCC

463

- quoted

and

followed/same

view

in

Commissioner.

3.15 Rectification of Order by NCLTAny

clerical

or

arithmetical

mistakes

in

any

order

of

NCLT

or

error

therein

arising from

any

accidental

slip

or

omission

may,

at

any

time,

be

corrected

by

NCLT

on

its

own

motion

or

on

application

of

any

party

by

way

of rectification.

An application

for

rectification

of

order

may

be

made

in

form

No.

NCLT.

9 within

two

years

from

the

date

of

the

final

order

for

rectification

of

the

final

order not

being

an

interlocutory

order

- Rule

154(2)

of

NCLT

Rules,

2016.

There is

no

parallel

provision

in

NCLAT

Rules,

2016.

However,

these

powers

are indeed

inherent

powers

of

any

Tribunal.

General power of NCLT to amend its order - NCLT may,

within

a period

of

thirty-days from

the

date

of

completion

of

pleadings,

and

on

such

terms

as

to costs

or

otherwise,

as

it may

think

fit,

amend

any

defect

or

error

in

any

proceeding before

it;

and

all

necessary

amendments

shall

be

made

for

the

purpose of

determining

the

real

question

or

issue

raised

by

or

depending

on such

proceeding

- Rule

155

of

NCLT

Rules,

2016.

There is

no

parallel

provision

in

NCLAT

Rules,

2016.

However,

these

powers

are indeed

inherent

powers

of

any

Tribunal.

55 RECTIFICATION OF

ORDER

BY

NCLT Para 3.15

Page 35: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

3.16 NCLT and NCLAT can award cost and even exemplary cost on defaulting partyNCLT

and

NCLAT

can

award

costs

for

meeting

legal

expenses

of

the

respondent of

defaulting

party.

NCLT

can

direct

appellant

or

respondent

to

bear cost

of

litigation

of

the

other

side.

In

case

of

abuse

of

process

of

Court,

NCLT and

NCLAT

can

impose

exemplary

costs

on

defaulting

party

- Rule

113 of

NCLT

Rules,

2016

and

rule

56

of

NCLAT

Rules,

2016

This has

been

held

as

inherent

powers

of

Tribunal.

Quasi judicial

authorities

have

inherent

powers

to

dismiss

a case

on

the

ground of

abuse

of

the

process

- New India Assurance Co Ltd.

v.

K Srinivasan

2000(3) SCC

242.

3.17 Forms in respect of NCLTFollowing

forms

have

been

prescribed

in

respect

of

procedures

before

NCLT.

Form No. Details Relevant Rule/s

NCLT.1

From of

application/reply/rejoinder/inter-

34

to

87

locutory

application

NCLT.2

Interlocutory application

34

NCLT.3

Notice of

motion

for

interlocutory

applica-

34

tion

NCLT.3A

Advertisement detailing

petition

35

NCLT.3B

Individual notice

of

petition/application

to

68

creditors,

members

etc.

NCLT.4

General heading

for

proceedings

34

NCLT.5

Notice to

opposite

party

to

be

issued

by

34

and

37

NCLT

NCLT.6

Form of

affidavit

34

NCLT.7

Affidavit by

way

of

evidence

39

NCLT.8

Application

for

execution

of

order under

56

section

424(3)

with

reference

to

decree

NCLT.9

General

form

for

all

purposes

if specific

72

to

154

form

is

not

prescribed

NCLT.10

Application for

registration

of

an

intern

of

46

authorised

representative

Para 3.17 PROCEDURAL ASPECTS

OF

NCLT

AND

NCLAT 56

Page 36: Procedural aspects of NCLT - Taxmann · Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies

NCLT.11

Application for

repayment

of

deposit

or

de-

73

bentures

NCLT.12

Memorandum of

Appearance

by

practising

45

CS/CA/CMA

NCLT.13

Public notice

of

petition

under

section

245

87

of

Companies

Act,

2013

NCLT.14

Certificate when

deponent

is

blind

or

illite-

128

rate

or

unacquainted

language

NCLT.15

Application

for

order

for

production

of

131

documents

NCLT.16

Form of

recording

deposition

of

witness

140

NCLT.17

Certificate of

discharge

of

Court

witness

142

NCLT.18

Record of

appeals

filed

before

NCLAT

163

against

order

of

NCLT

Form No. Details Relevant Rule/s

57 FORMS IN

RESPECT

OF

NCLT Para 3.17