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