National Company Law Tribunal and Appellate Tribunal
Chapter XXVII of the Companies Act, 2013 deals with the provisions relating to the National Company Law Tribunal and Appellate Tribunal.
CONSTITUTION OF
NCLT -The Central Government by way of
notification in the official gazette shall constitute a tribunal to be known as
the National Company Law Tribunal. Which shall consist of the President, the
Judicial and the Technical members as the CG may deem fit and shall not exceed
sixty two members discharging its functions and powers.
The Ministry of Corporate
Affairs (MCA) vide notification no. S.O. 1932(E) and S.O. 1933(E) dated
June 1, 2016 notified constitution of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) with effect from
June 1, 2016 in exercise of the powers conferred by section 408 and 410 of the
Companies Act 2013.
Qualification
of President and the Members of the Tribunal
President shall be a person who is or has
been a judge of a high court for five years who will be appointed after the
consultation with the chief justice of India.
Judicial member shall be qualified for
appointment by the selection committee if-
- · Is, or Has been a judge of a high court
- · Is, or Has been a district judge for at least five years
- · Has at least ten years of experience as an advocate
Technical member shall be qualified for
appointment by the committee if-
- Has, at least 15 years been a member of the Indian corporate law service or Indian legal service and out of which 3 years shall be on pay scale of joint secretary.
- Is or has been in practise as a chartered accountant for 3 years.
- Is or has been in practise as a cost accountant for at least fifteen years.
- Is or has been in practise as a company secretary for at least fifteen years
- Having experience in law for 15 years
- Is or has been a presiding officer for at least 15 years of a labour court, tribunal.
CONSTITUTION OF
APPELLATE TRIBUNAL-
The Central Govt. by notification constitute an appellate tribunal to be known
as the National Company Law Appellate Tribunal
which shall consists of the Chairperson and Judicial and the Technical members
which shall not exceed the eleven members.
Qualification
of Chairperson and the Members of Appellate Tribunal-
- Chairperson- who is or has been a judge of the Supreme Court or chief justice of high court appointed after consultation with the chief justice of India.
- Judicial member- who is or has been a judge of high court or is a judicial member of tribunal for five years.
- Technical members- person of proven ability, integrity and having knowledge and experience of not less than 25 years in law, industrial finance and managements.
Ø
The
senior most members can act on behalf of the president and the chairperson in
the event of occurrence of any vacancy in the office due to death, resignation
etc. till the new chairperson and the president is being appointed. The senior
most member can also discharge their functions if cases of absence, illness or
any other cause.
Ø
President,
chairperson or any other member may give the notice for their resignation in
writing but these members will continue till the new member is being appointed for
the period of three months from their resignation.
Ø
The
members can be removed by the central govt. in consultation with the CJI on the
grounds of insolvency, conviction of offence which may involve mental or
physical harm
Ø
The
Central Govt. may provide as many benches as it deem fit which shall consist of
the judicial and the technical members for cases relating to the
rehabilitation, restructuring of the companies. In cases when the two members
do not agree in such cases the powers are been given to the president to refer
the matter to the third member.
Ø
An
appeal to the appellate tribunal can be file within 45 days from the date of
order of the tribunal if a person is aggrieved by the order of the tribunal,
this period may be further extended to 45 days if it is justified before the
appellate tribunal that the delay is due to certain circumstances.
Ø
Tribunals
shall make an effort to dispose of the cases within 3 months for the
speedy trial if the matter are not being
disposed of then the reason for the delay shall be mentioned and the president
and chairperson shall take it into consideration and has the discretion to
further extend the period not exceeding 90 days. Further the person if not
satisfied by the order of the tribunal can file an appeal to the Supreme Court
within 60 days which may further extend to 60 days.
Ø
The
Tribunal and the appellate tribunal shall be guided by the principle of Natural
justice but are not bound by the procedure laid in civil procedure code. Thus,
while discharging the powers and function, it would have powers vested with the
civil courts.
Ø
All
the matters pending before CLB will transfer to the tribunal on the
formation of the tribunal.
Ø
Further all the matters relating to
compromise, arrangements and reconstruction pending before the district court
and high court will also be transferred to the tribunal.
* The
above reference is based on the provisions of the Companies Act, 2013.
RECENT STATUS (June 2016)
The Ministry of
Corporate Affairs (MCA) vide notification no. S.O. 1932(E) and S.O. 1933(E) dated
June 1, 2016 notified constitution of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT) with effect from
June 1, 2016 in exercise of the powers conferred by section 408 and 410 of the
Companies Act 2013. According to press
information bureau, hon’ble Mr. Justice S.J. Mukhopadhaya Judge (retd.) Supreme
Court of India has joined as the chairperson of the NCLT and hon’ble Mr Justice
M.M. KUMAR judge, (retd.), chief justice, J&K High Court has joined as a
president of the NCLT.
With the
constitution of the NCLT, the Company Law Board constituted under the Companies
Act stands dissolved.
The MCA has in the initial phase notified 11 benches of
NCLT, two at New Delhi and one each at Ahmedabad, Allahabad, Bangaluru,
Chandigarh, Chennai, Guwahati, Hyderabad, Kolkata and Mumbai.
Further, MCA in
exercise of powers under section 1(3) vide notification no. S.O. 1934(E) dated June 1, 2016 notified
commencement of the following sections under the Companies Act, 2013
w.e.f. June 1, 2016 which are inter-alia
related to NCLT and NCLAT matters.
S.NO.
|
SECTIONS
|
PARTICULARS
|
1.
|
Sub-Section (7) of Section 7
[except clause (c) and (d)]
|
Power of tribunal to pass
orders etc. Where company has been incorporated by furnishing any false or
incorrect information or representation
|
2.
|
Second proviso to sub-
section (1) of section 14
|
Provision relating to
conversion of public company into private company
|
3.
|
Section 14 (2)
|
|
4.
|
Section 55 (3)
|
To approve issue of further
redeemable preference shares when a company is unable to redeem its existing
unredeemed preference shares or to pay dividend thereon
|
5.
|
Proviso to clause (b) of
section 61 (1)
|
To approve consolidation or
division of share capital resulting in change of voting percentage of
shareholders
|
6.
|
Section 62(4) to (6)
|
Order of government for
conversion of loans/debentures into shares in public interest and where the
terms of conversion of debentures into shares of a company ordered by the
government are not acceptable to the company, the company may appeal to the
tribunal for making such order as it may deem fit
|
7.
|
Section 71 (9) to (11)
|
·
Where
the assets of a company are insufficient to discharge the debentures, the
debentures trustee may apply to the NCLT.
·
NCLT
to order redemption of debentures forthwith by the payment of principal and
interest due thereon
·
Penalties
for not complying with the order of tribunal
|
8.
|
Section 75
|
Damages for fraud with
respect to failure to repay deposits and interest thereon
|
9.
|
Section 97
|
Power of tribunal to call
general meetings
|
10.
|
Section 98
|
Power of tribunal to call
meetings, etc. i.e. in cases it is impracticable to call a meeting , the
tribunal may either suo-moto, or on application of a director or member of
the company who is entitled to vote at the general meeting, order to call
meeting i.e. extra ordinary general meeting and give such direction as may be
necessary
|
11.
|
Section 99
|
Punishment for default in
complying with provisions of sections 96 to 98 ( i.e. provisions relating to
annual general meetings)
|
12.
|
Section 119(4)
|
Inspection of minute- books
of general meetings; power of tribunal to order, direct an immediate
inspection of the minute books or
direct that the copy required shall forthwith be sent to the person requiring
it.
|
13.
|
Section 130
|
Re-opening of accounts on
courts or tribunal orders
|
14.
|
Section 131
|
Voluntary revision of
financial statements or board report.
|
15.
|
Second proviso to Section
145(4) and Section 140(5)
|
The provisions inter-alia
includes-
·
To
restrict copies of representation of the auditor to be removed to be sent out
·
The
tribunal may, on the application of the company or any other aggrieved person
, order that the copy of representation by the auditor need not to be sent to
members nor read at the meetings
·
Where
NCLT is satisfied that the auditor has acted in a fraudulent manner, it may
order that the auditor may be changed
|
16.
|
Section 169 (4)
|
The section inter-alia
includes provisions conferring powers to tribunal to order that the
representation from the director need not be sent to the members and nor read
at the meeting
|
17.
|
Section 213
|
Investigation into company’s
affairs in other cases
|
18.
|
Section 216(2)
|
Investigation of ownership
of company
|
19.
|
Section 218
|
Protection of employees
during investigation
|
20.
|
Section 221
|
Freezing of assets of the
company on inquiry and investigation
|
21.
|
Section 222
|
Imposition of restriction
upon securities
|
22.
|
Section 224(5)
|
Actions to be taken in
pursuance of inspectors report
|
23.
|
Section 241
|
Application to tribunal for
relief in cases of oppression, etc.
|
24.
|
Section 242[ except clause
(b) of sub- section (1), clause (c) and (g) of sub-section (2)]
|
Certain powers of tribunals
notified except for certain high courts matters such as reduction of capital
etc.
|
25.
|
Section 243
|
Consequences of termination
of modification of certain agreements
|
26.
|
Section 244
|
Right to apply under section
241 i.e. application to tribunal in case of oppression etc.
|
27.
|
Section 245
|
Class action
|
28.
|
Reference of word TRIBUNAL
in Section 399(2)
|
Leave of the tribunal
required for issuance of certain documents.
|
29.
|
Section 415 to 433 (both
inclusive)
|
Provisions relating to constitution
of national company law tribunal and national company law appellate tribunal
|
30.
|
Section 434 (1) (a) and (b)
|
Transfer of powers from
company law board to NCLT
|
31.
|
Section 434(2)
|
Powers of central government
to make rules relating to transfer of cases from company law board to
national company law tribunal
|
32.
|
Section 441
|
Compounding of certain
offences
|
33.
|
Section 466
|
Dissolution of company law
board
|
Sr.
No.
|
Title
of the Bench
|
Location
|
Territorial Jurisdiction
|
1.
|
A) National Company Law Tribunal, Principal Bench.
B) National Company Law Tribunal, New Delhi
|
New Delhi
|
|
2.
|
National Company Law Tribunal, Ahmedabad Bench
|
Ahmedabad
|
1. State
of Gujarat
2. State
of Madhya Pradesh
3. Union
territory of Dadra and Nagar Haveli
4. Union
territory of Daman and Diu
|
3.
|
National Company Law Tribunal, Allahabad Bench
|
Allahabad
|
1. State
of Uttar Pradesh.
2. State
of Uttarakhand
|
4.
|
National Company Law Tribunal, Bengaluru Bench
|
Bengaluru
|
1.
State of Karnataka
|
5.
|
National Company Law Tribunal, Chandigarh Bench
|
Chandigarh
|
2. State
of Himachal Pradesh
3. State
of Jammu and Kashmir
4. State
of Punjab
5. Union
territory of Chandigarh
|
6.
|
National Company Law Tribunal, Chennai Bench
|
Chennai
|
1. State
of Kerala
2. State
of Tamil Nadu
3. Union
territory of Lakshadweep
4. Union
territory of Puducherry
|
7.
|
National Company Law Tribunal, Guwahati Bench
|
Guwahati
|
1. State
of Arunachal Pradesh
2. State
of Assam
3. State
of Manipur
4. State
of Mizoram
5. State
of Meghalaya
6. State
of Nagaland
7. State
of Sikkim
8. State
of Tripura
|
8.
|
National Company Law Tribunal, Hyderabad Bench
|
Hyderabad
|
1. State
of Andhra Pradesh
2. State
of Telangana
|
9.
|
National Company Law Tribunal, Kolkata Bench
|
Kolkata
|
1. State
of Bihar
2. State
of Jharkhand
3. State
of Odisha
4. State
of West Bengal
5. Union
territory of Andaman and Nicobar Islands
|
10.
|
National Company Law Tribunal, Mumbai Bench
|
Mumbai
|
1. State
of Chhattisgarh
2. State
of Goa
3. State
of Maharashtra
|
The setting of the NCLT and NCLAT
as a consolidated forum for corporate law matters dealt presently with by the Company
Law Board, State High Courts, BIFR and AAIFR will provide tremendous
opportunities for practicing professionals before NCLT and NCLAT . In the initial phase it is proposed to
transition matters dealt by the Company Law Board only to NCLT.
New Corporate Laws Treatise, www.nclt.in endeavours to bring considerable knowledge
materials, procedural checklists, formats of petitions etc. for the use of
professional community and subscribers to the website
To download the MCA notifications please refer
to below links on www.nclt.in:
No comments:
Post a Comment