KSR & Co Company Secretaries LLP PRACTISING COMPANY SECRETARIES & TRADE MARK AGENTS COIMBATORE & CHENNAI

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1 KSR & Co Company Secretaries LLP PRACTISING COMPANY SECRETARIES & TRADE MARK AGENTS COIMBATORE & CHENNAI Assuring Assuring Compliances Compliances & Solutions & Solutions Beyond Beyond Challenge Challenge

2 NIRC NCLT & NCLAT RULES AN OVERVIEW Dr. K. S. Ravichandran Managing Partner

3 NCLT & NCLAT SURVIVING CHALLENGES R Gandhi Vs Union Of India, Supreme Court, MAY 11, The constitutional validity of NCLT/NCLAT upheld lays down procedure for appointing of Judicial Member & Technical Member Administrative Powers to vest with Ministry of Law & Justice. Madras Bar Association Vs Union Of India, Supreme Court MAY Reaffirms the constitutional validity of NCLAT. Further prescribes selection process of members of NCLT/NCLAT

4 NOTIFICATION ON ESTABLISHMENT NCLT 10 benches notified with respective jurisdictions. Principle Bench at Delhi NCLAT Principle Bench : Delhi Vacation bench notified: NCLT at Delhi from June 6,2016 to June 17, No Sitting: June 20, 2016 to July 1, 2016 CLB stands dissolved w.e.f June 1, 2016 (Section 466) 3 18 June, 2016

5 Notification dated June 1, 2016 activates 29 items under Companies Act 2013 which empowers NCLT to adjudicate. Transfer of proceedings and cases pending before CLB prior to June 1, 2016 to NCLT Section 434 (1) (a) of Companies Act, 2013 enforced. In respect of matters for which decision or order of CLB has been made prior to June 1, 2016, if the appeal is preferred the same is required to be filed before the jurisdictional High Court within sixty days thereof only on question of law. Section 434(1) (b) of Companies Act, Relevant Rules: National Company Law Tribunal Rules, 2016; National Company Law Appellate Tribunal Rules, 2016; 4 18 June, 2016

6 NCLT/OPERATIONAL PROVISIONS: The said Notification brings into operation a first tranche of 29 matters in respect of which the Act empowers the NCLT to decide. The highlights of the same are provided below: Any offence relating to incorporating a company by furnishing false or incorrect information can invite the wrath of the NCLT which can inter alia order making the liability of members unlimited. : Section 7 (7) {except clause c & d} Conversion of a public company to a private company requires approval of NCLT. : Section 14 (1) 2 nd proviso & Section 14 (2) Where a company is not in a position to redeem its preference shares or pay dividend in accordance with the terms of issue, then the redemption of such preference shares can be made with further issue of preference shares equivalent to the amount due, subject to the approval of preference shareholders of prescribed majority and approval of NCLT. : Section 55(3) Consolidation or division of share capital which will result in change of voting percentage of shareholders shall take effect only with the approval of NCLT. : Section 61 (1) proviso to clause b 5 18 June, 2016

7 NCLT/OPERATIONAL PROVISIONS (cont.): Conversion of debt into equity by the Government is not agreeable to a company, then such company can appeal to NCLT. : Section 62(4), (5) & (6) NCLT on a petition made by Debenture Trustee can impose further restrictions on a company which has issued debentures from incurring liability on the ground of assets being insufficient assets in the opinion of Debenture Trustee to discharge the principal amount. : Section 71 (9), (10) & (11). NCLT on a petition made by a company can enlarge time to repay deposits. Section 73 and 74 NCLT on application of a member can call for holding of Annual General Meeting (AGM) of a company if it had defaulted in holding the same and further provide ancillary and consequential directions thereto. : Section 97 NCLT can either suo motto or on the application of any director or member of a company can call, hold and conduct a general meeting other than AGM where it is proven that it has become impracticable for such a company to convene and hold any general meeting other than AGM and further provide ancillary and consequential directions thereto. : Section 98 Any person can apply to NCLT to seek its direction to direct the company to permit inspection of minutes book of general meetings, if the same has been refused by such a company earlier. : Section 119 (4) 6 18 June, 2016

8 NCLT/OPERATIONAL PROVISIONS (cont.): The books of accounts of a company can be re-opened and financial statements can be recast with the approval of NCLT on an application made by Central Government, Income Tax authorities, SEBI or any statutory or regulatory body or any other person concerned on ground that the earlier accounts have been prepared fraudulently or affairs of the company is being mismanaged during the relevant period casting a doubt on reliability of the financial statements. : Section 130 A company can voluntarily seek the permission of NCLT to revise its earlier financial statements and or report of the board of directors on basis of non-compliance of applicable provisions under the Act. Section 131 NCLT can provide relief to the company or any aggrieved person, where an auditor sought to be removed by the shareholders is using the provisions of sending his representation against his removal to every shareholders or reading the same in the general meeting is proved to be abused. : Section 140 second proviso to (4) and sub section (5) NCLT can provide relief to the company or any aggrieved person, where an director sought to be removed by the shareholders is using the provisions of sending his representation against his removal to every shareholders or reading the same in the general meeting is proved to be abused. : Section 169 (4) NCLT can provide relief against acts of oppression and mismanagement. Section 241 NCLT can compound offences where maximum amount of fine that can be imposed exceeds Rs.5,00,000/-. : Section June, 2016

9 Major Powers of NCLT Schemes of amalgamation and other arrangement [Sections 230 to 240] Corporate Insolvency Resolution Process Adjudicating Authority [Section 80 to 120 of I & B Code] Oppression and Mismanagement Cases [Section 241 to 244] Class Action Suits [Section 245] Surcharge in O & M & Class Action Cases [Section 246 r/w Sections 337 to 341] Winding up of Companies [Section 270 r/w 271, 272 & 280 as amended by I & B Code] 8 22-Aug-16

10 Time Bound Disposal of Cases Section 422 Expeditious disposal of applications / petitions is mandatory. As far as possible NCLT / NCLAT shall make every endeavour for the disposal of such application or petition or appeal within 3 months. If disposal could not be made within 3 months, NCLT / NCLAT, shall record the reasons for not disposing of the application or petition or the appeal, as the case may be. The President or the Chairperson, can extend the period referred to in sub-section (1) by such period not exceeding ninety days as he may consider necessary Aug-16

11 Two member Benches Section 419 The powers of the Tribunal shall be exercisable by Benches consisting of two Members out of whom one shall be a Judicial Member and the other shall be a Technical Member. It is possible for a single Judicial Member to function as a Bench and exercise the powers of the Tribunal for specified class of cases, as the President may, by general or special order, specify. If it appears to a single member bench that that the case must be heard by a Bench consisting of two Members, it is possible to transfer the case the President, or, as the case may be, referred to him for transfer, to such Bench as the President may deem fit Aug-16

12 Special Bench Section 419 The President shall, for the disposal of any case relating to rehabilitation, restructuring, reviving or winding up, of companies, constitute one or more Special Benches consisting of three or more Members, majority necessarily being of Judicial Members Aug-16

13 Majority Decision will stand [Section 419] If the Members of a Bench differ in opinion on any point or points, it shall be decided according to the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of Members who have heard the case, including those who first heard it Aug-16

14 Civil Procedure Code Extent of Applicability The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in CPC, but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure. (3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, Aug-16

15 Powers of a Civil Court - Section 424 NCLT and NCLAT have the same powers as are vested in a civil court under CPC while trying a suit in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or a copy of such record or document from any office; Aug-16

16 Powers of a Civil Court Section 424 (e) issuing commissions for the examination of witnesses or documents; (f) dismissing a representation for default or deciding it ex parte; (g) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and (h) any other matter which may be prescribed Aug-16

17 Equivalent of a Decree of a Court Section 424 Any order made by NCLT / NCLAT may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction, (a) in the case of an order against a company, the registered office of the company is situate; or (b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain Aug-16

18 All Proceedings are Judicial Proceedings Section 424 All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code, and the Tribunal and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, Aug-16

19 No jurisdiction to Civil Courts Section 430 No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which NCLT & NCLAT is empowered to determine by or under this Act or any other law for the time being in force and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or any other law for the time being in force, by NCLT & NCLAT Aug-16

20 Who can appear? Section 432 A party to any proceeding or appeal before the Tribunal or the Appellate Tribunal, as the case may be, may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any other person to present his case before the Tribunal or the Appellate Tribunal, as the case may be Aug-16

21 Limitation Act Applies Section 433 The provisions of the Limitation Act, 1963 shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be Aug-16

22 Important Rules Authorised Representative and Dress Code Where is Code of Conduct? Transferred Applications and Petitions Computation of Time Period What is meant by Pleadings What are the Inherent Powers of NCLT / NCLAT Powers to Exempt! Procedure for Filing; size of paper; language; translation requirements and payment of fee Aug-16

23 Important Rules Interlocutory Application Evidence by Affidavit Cross Examination Forfeiture of Right in certain cases relating Inspection / Investogation Counter / Rejoinder Right of Parties / Auth Rep / Legal Practitioner and Prescribed Form for Memorandum of Appearance Regn of Interns Aug-16

24 Important Rules Non appearance and consequences Petitioner / Respondent Exparte Hearing and Disposal Difference between Rule 49 and 110 Substitution of Legal Representatives Effect of Non compliance of Orders of NCLT Procedure for imposing penalty Amicus Curiae Recusal Aug-16

25 Important Rules Matters earlier dealt with CLB Reference to the Tribunal Steps for Issue of Fresh Notice Award of Costs Inspection Discovery Production and Return of documents Examination of Witnesses and Issue of Commission Specimen Handwriting Enlargement of time Aug-16