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“NCLT – Constitution, Transitional Provisions and Powers of NCLT / NCLAT”

“NCLT – Constitution, Transitional Provisions and Powers of NCLT / NCLAT” (Under Companies Act, 2013). CS Satwinder Singh Central Council Member, NIRC-ICSI Partner, Vaish Associates Advocates 19 th October, 2015. Jurisdiction under the Companies Act, 1956.

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“NCLT – Constitution, Transitional Provisions and Powers of NCLT / NCLAT”

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  1. “NCLT – Constitution, Transitional Provisions and Powers of NCLT / NCLAT” (Under Companies Act, 2013) CS Satwinder Singh Central Council Member, NIRC-ICSI Partner, Vaish Associates Advocates 19thOctober, 2015

  2. Jurisdiction under the Companies Act, 1956 Agencies Dealing with Company Law Matters State High Court(s) CLB BIFR/ AAIFR Presidency Magistrate or a Magistrate of the first class Winding up petitions, Compromise & Arrangements, reduction of capital, restoration of name & appeal from CLB Rectification of registers, transfer/transmission of shares, oppression mismanagement, compounding of offences etc. Revival and rehabilitation of Sick Companies Offences under the Old Act

  3. SC: Clearing the way for Constitution of NCLT/ NCLAT • In a recent landmark judgment by the Hon’ble Supreme Court ('SC') vide its order dated 14.05.2015 in the matter of Madras Bar Association vs. Union of India [Writ Petition (C) No. 1072 of 2013], constitutional validity of National Company Law Tribunal ('NCLT') and National Company Law Appellate Tribunal ('NCLAT') under Companies Act, 2013 was again upheld. • Background:- Madras Bar Association ('the Association') filed a writ petition before SC alleging that provisions relating to establishment and constitution of NCLT/ NCLAT were ultra vires the provisions of Article 14 of the Constitution of India. Constitution Bench of SC on May 14, 2015 rejected the Association's allegation, upheld the constitutionality of Tribunals and observed that it is "a common feature/practice to provide one appellate forum wherever an enactment is a complete Code for providing judicial remedies". However, certain defects have been pointed out with regard to the appointment provisions etc. in the 2013 Act.

  4. Recent News Article - NCLT

  5. NCLT – A New Era to Corporate Adjudication • Upon constitution of NCLT, the powers and jurisdiction of following agencies in respect of corresponding aspects shall vest with NCLT: • State High Court(s): Cases relating to arrangement or compromise, winding up, reduction of capital, restoration of name of the company, appeals from CLB orders u/s 10F of the Old Act. • BIFR/ AAIFR: Cases pertaining to revival and rehabilitation of sick companies. • CLB: Cases pertaining to rectification of register of members, complaints relating to refusal to transfer/ of transmission of shares, matters relating to oppression and mismanagement and other matters relating to investigations & compounding of offences. • Appeals against the order(s) of NCLT to be heard by NCLAT and appeals against the order of NCLAT to be heard by the Hon’ble Supreme Court

  6. Moving from Companies Act, 1956 to Companies Act, 2013 – Transitional Provisions • Transfer of pending proceedings [from a date to be notified by MCA(“Effective Date”)]: • All matters pending before CLB immediately before the Effective Date shall stand transferred to NCLT. NCLT shall dispose of such matters in accordance with the provisions of the New Act (Section 434(1) (a)). Appeal from order of CLB made before the Effective Date may be filed with High Court within 60 days from date of communication of order on question of law. Another 60 days with condonation of delay. • The draft rules related to NCLT, under Rule 102 provides for all cases reserved for order prior to the Effective Date to be reopened and reheard by NCLT. • All proceedings under the Old Act pending before District Court or High Court shall stand transferred to NCLT and NCLT may proceed to deal with such proceedings from the stage before their transfer (Section 434(1) (c)).

  7. Moving from Companies Act, 1956 Act to Companies Act, 2013 – Transitional Provisions • Abatement of proceedings (from a date to be notified by MCA): • All inquiry/ appeal pending before BIFR/ AAIFR respectively or any proceedings pending, under SICA, before commencement of the New Act, shall stand abated (Section 434(1)(d)); • However, companies in respect of which an appeal or inquiry stands abated can make reference to NCLT in terms of the New Act, within 180 days from commencement of the New Act. • Dissolution of CLB: (Section 465 and Section 466) • Until a date is notified under Section 434 (1) of the New Act, the provisions of the Old Act, in regard to jurisdiction, powers, authority and functions of CLB and court, shall continue to apply, as if the Old Act has not been repealed.

  8. Moving from Companies Act, 1956 Act to Companies Act, 2013 – Transitional Provisions • Section 465 (2), further provides for the following: • Any prosecution instituted under the repealed enactments and pending immediately prior to commencement of the New Act, before any court (as defined in the New Act), shall continue to be heard by the said Court and be subject to provisions of the New Act. • Any inspection, investigation or inquiry ordered or to be done under the Old Act, shall continue to be proceeded with as if, such inspection, investigation or inquiry has been ordered under the provisions under the New Act. • Any matter filed with the Registrar, Regional Directors or the Central Government under the Old Act, before commencement of the New Act and not fully addressed by the concerned person/ authority shall be concluded in terms of the New Act. • On constitution of NCLT and NCLAT in terms of the New Act, CLB shall stand dissolved.

  9. Removal of difficulty • The Central Government, vide notification dated 12th September, 2013 notified 98 sections of the New Act, amongst which sections 24, 58 and 59 of the New Act (pari-materia to sections 55A, 111 & 111A of the Old Act) were also notified. • Sections 24, 58 and 59 of the New Act prescribed certain powers to be exercised by NCLT, however as not all provisions pertaining to NCLT were notified, a need arose to clarify which body would exercise the powers conferred upon NCLT for the interim period. • The Central Government by virtue of section 470 of the New Act, released an order bearing no. S.O. 2821(E) on 20th September, 2013, through the Ministry of Corporate Affairs. • The order has been termed as Companies (Removal of Difficulties) Order, 2013.

  10. Removal of difficulty • In terms of the said order, it has been clarified that until a date is notified in terms of section 434(1) of the New Act, the Board of Company Law Administration shall exercise the powers of NCLT under section 24, 58 and 59 of the New Act. • Pursuant to the aforesaid order, CLB has released the following order: 1. Order bearing file no. 10/36/2001-CLB dated 25th September, 2013, pertaining to amendments in the Company Law Board Regulations, 1991; and 2. Order bearing file no. 10/43/2005-CLB dated 25th September, 2013, pertaining to discharging of the said powers by certain benches of CLB.

  11. Sections of the New Act made effective – NCLT & NCLAT • In relation to NCLT and NCLAT (Section 407 to 414): • Definitions (Section 407); • Constitution of NCLT (Section 408); • Qualification of President and Members of NCLT (Section 409); • Constitution of NCLAT (Section 410); • Qualification of Chairperson and Members of NCLAT (Section 411); • Selection of Members of NCLT and NCLAT (Section 412); • Terms of office of President, Chairperson and other Members (Section 413) • Salary, allowances and other terms and conditions of service of Members (Section 414);

  12. National Company Law Tribunal – Essential Provisions Expeditious disposal by Tribunal and Appellate Tribunal (Section 422): Every application, petition or appeal, as the case may be, presented before NCLT & NCLAT shall be dealt with and disposed off in a speedy manner & efforts shall be made to dispose the matter within 3 months from the date of its presentation. Otherwise NCLT or NCLAT shall record the reasons for not disposing off the application/petition/appeal with the said period of 3 months. The said period may be extended by the President of NCLT or the Chairperson of NCLAT by such period not exceeding 90 days. Procedure before Tribunal and Appellate Tribunal (Section 424): NCLT and NCLAT while dealing with any matter before it are not bound by the procedure laid down by the Code of Civil Procedure, 1908 (“CPC”). However, subject to the provisions of the New Act and rules made there under, they shall be guided by the principles of natural justice and shall have the power to regulate their own procedure. NCLT and NCLAT shall have the same powers vested in a civil court under CPC, for discharging its functions for specified matters.

  13. National Company Law Tribunal – Essential Provisions All proceedings before NCLT or the NCLAT 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 NCLT and NCLAT shall be deemed to be civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. Power to punish for contempt (Section 425): NCLT and NCLAT shall have the same jurisdiction, powers and authority in respect of contempt of themselves as the High Court has under the provisions of the Contempt of Courts Act, 1971, but subject to certain modifications as provided in this Section.

  14. National Company Law Tribunal – Essential Provisions Civil court not to have jurisdiction(Section 430): No Civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which NCLT or NCLAT is empowered to determine either in terms of the New Act or by any other law in force. No court or authority shall have the power to grant injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the New Act or any other law for the time being in force, by NCLT or NCLAT. Right to legal representation (Section 432): A party to any proceeding or appeal before NCLT or NCLAT may either appear in person or authorise 1 or more CAs/ CSs/ CWA s/ Advocates or any other person to present the case.

  15. National Company Law Tribunal – Essential Provisions Rule 25(3) of Draft Rules for NCLT (Chapter XVII): In case, CS/CA/CWA (in practice) are authorized to appear, they should have post qualification experience of minimum 5 years Appeal to NCLAT (Section 421): No Appeal shall lie from an order of NCLT passed by consent of parties. Appeal shall be filed within 45 days from the date on which copy of order of NCLT is made available. Another maximum 45 days for condonation of delay (earlier within 60 days; with another 60 days with condonation of delay. u/s 10F against order of CLB but only on question of law) Appeal to Supreme Court (Section 423): Appeal from order of NCLAT to the Supreme Court within 60 days from the date of communication of the order of NCLAT on any question of law arising out of such order. Another 60 days with condonation of delay.

  16. National Company Law Tribunal – Essential Provisions Reference to Draft Rules released by MCA on 5th September, 2013 for public comments (“Draft Rules”): • Rule 1(5): The rules shall be applicable in proceedings before NCLT in cases of a Limited Liability Partnership under the Limited Liability Partnership Act, 2008. • Rule 14: Any notice or process to be issued by NCLT may be served in an electronic form at the valid e-mail address as provided in a petition/ application/ reply. • Rule 22: Applicant documents to be marked as “A” series, Respondent documents to be marked as “R” series and NCLT exhibits to be marked as “T” series. • Rule 23: If not sufficient grounds are met for proceedings, NCLT to summarily dispose the petition/ application for reasons to be recorded.

  17. National Company Law Tribunal – Essential Provisions • Rule 60: NCLT headquarters to be at New Delhi. • Part III (Rules 73 - 92): Pertaining to e-filing of applications/ petitions etc. • Rule 102: All original civil actions or cases arising out of the New Act, corresponding provisions of the Old Act or the Reserve Bank of India Act, 1934, filed or pending before the CLB, on the date the provisions pertaining to NCLT are given effect, or CLB is abolished in pursuance of the New Act, then all such cases shall stand transferred to NCLT. Further, in case, order is reserved by CLB or its Bench, then NCLT shall reopen the matter and rehear the case as if the hearing had not taken place. • Rule 104: Any appeal before AAIFR, or any reference or inquiry made before BIFR shall stand abated immediately prior to commencement of the New Act.

  18. Corporate Jurisdiction Hierarchy under the Companies Act, 2013 Company Law Jurisdiction Specified proceedings under the New Act Offences to be tried NCLT Special Courts High Courts NCLAT Supreme Court

  19. Special Courts – Essential Provisions • Establishment of Special Courts (Section 435): • The Central Government may, for the purpose of providing speedy trial of offences under this Act, by notification, establish or designate as many Special Courts as may be necessary. • A Special Court shall consist of a single judge who shall be appointed by the Central Government with the concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working. • A person shall not be qualified for appointment as a judge of a Special Court unless he is, immediately before such appointment, holding office of a Sessions Judge or an Additional Sessions Judge. • Offences triable by Special Courts (Section 436): • All offences under the New Act shall be tried by Special Court • Special Court may try an offence under CrPC at the same trial

  20. Special Courts – Essential Provisions • Application of Code to proceedings before a Special Court (Section 438): • In terms of this section, Special Courts shall follow the provisions of the Code of Criminal Procedure, 1973. • A person conducting the prosecution before Special Courts shall be deemed to be a Public Prosecutor; however, the legislature has further provided the concept of company prosecutors in Section 443 of the New Act. • Offences to ne non-cognizable(Section 439): The New Act provides that offences referred to in Section 212 (6) of the New Act (i.e. “Investigation into affairs of company by Serious Fraud Investigation Office”) shall be cognizable and all other offences under the New Act, shall be non-cognizable within the meaning of the Code of Criminal Procedure, 1973. • Transitional Provisions (Section 440): The said Section provides that until such time the Special Courts are established, the offences under the New Act, shall be tried by the Court of Sessions having jurisdiction over the specific area.

  21. Sections of the New Act made effective – Special Courts • In relation to Special Courts (Section 439 & 443 to 446): • Offences to be non-cognizable (Section 439); • Power of Central Government to appoint company prosecutors (Section 443); • Appeal against acquittal (Section 444); • Compensation for accusation without reasonable cause (Section 445); • Application of fines (Section 446).

  22. Mediation & Conciliation • Mediation and Conciliation Panel(Section 442): • This provision of the New Act provides for constitution of a panel of experts to be called the “Mediation and Conciliation Panel” for conducting mediation between parties during the pendency of any proceedings under the New Act. • The parties to a proceeding before the Central Government, NCLT, NCLAT, shall have the right to apply to the Central Government or NCLT or NCLAT, as the case may be, for referring such proceedings to a Mediation and Conciliation Panel. • The parties shall apply in such form along with such fee as may be prescribed. Pursuant to the filing of the form, the Central Government, NCLT, NCLAT (as the case may be) shall appoint one or more experts to constitute the Mediation and Conciliation Panel.

  23. Mediation & Conciliation • Mediation and Conciliation Panel(Section 442): • Suomoto powers have also been given to the Central Government, NCLT and NCLAT, to refer the proceedings pending to the Mediation and Conciliation Panel at their discretion. • Recommendations of the Medication and Conciliation Panel shall be submitted to the body referring the proceedings. • The recommendations of the Mediation and Conciliation Panel shall be objected to by either of the parties filing objections in respect of the same with the Central Government/ NCLT/ NCLAT, as the case may be. • Reference to Draft Rules (Rule 28.15): Mediators/ Conciliators only to aid the process of arriving at a decision, they cannot impose settlement or any decision on the Parties.

  24. National Company Law Tribunal Powers Pursuant to the New Act coming into force in entirety, NCLT inter-alia shall have the following power: (For the complete outlay of NCLT powers, refer to Slide No. 39 – 47) NCLT Powers in terms of the LLP Act, 2008 Winding Up Compromise and Arrangements Oppression and Mismanagement Complaints relating to refusal to transfer/ of transmission of shares Revival and Rehabilitation of Sick Companies Class Action Suits Rectification of Register(s) Investigation and compounding

  25. Class Action Suit:Chapter XVI (Sections 245) • Though order I rule 8 of CPC, 1908 provides for representative action in a limited manner, insertion of concept of “class action suits” in the New Act is a welcome change. • The provision can be invoked if the management or conduct of the affairs of the company are being conducted in a manner prejudicial to the interests of the company or its members or depositors or any class of them by filing an application before NCLT on behalf of the members or depositors. • Eligibility to file: Members: (a)In case of company having share capital, (i) not less than 100 members; or not less than such percentage of the total number of members, as may be prescribed, whichever is less; or (ii) any member or members holding atleast such percentage of the issued share capital of the company, as may be prescribed; (b) In case of company not having share capital, atleast 1/5th of total number of members.

  26. Class Action Suit:Chapter XVI (Sections 245) Depositors: (a) not less than 100 depositors or not less than such percentage of the total number of depositors as may be prescribed, whichever is less, or (b) any depositor(s) to whom the company owes such percentage of total deposits of the company as may be prescribed. • The order of NCLT shall be binding on all persons associated with the company. • NCLT has been conferred with wide powers vide this section. • Complainant can claim damages or compensation or suitable action under the section. In the event the members or depositors claims such damages or compensation or demand against an audit firm, the liability shall be of the firm as well as of each partner who was involved.

  27. Class Action Suit:Chapter XVI (Sections 245) • Safeguards have been provided under section 245(4) of the New Act to prevent frivolous or vexatious class action suits.   • Two class action applications for the same cause of action shall not be allowed and the cost or expenses connected with the application for class action shall be defrayed by the company or any other person responsible for any oppressive act. • In the event NCLT finds an application to be frivolous or vexatious, the applicant could be made to pay to the opposite party such costs, not exceeding INR 1,00,000, as may be specified by NCLT. • This section is not applicable to a banking company.

  28. Revival and Rehabilitation of Sick Companies:Chapter XIX (Sections 253 - 269) • Sickness has been defined in the New Act, as the inability of the company to pay or secure or compound the payment on demand by its secured creditors representing 50% of the outstanding debts within 30 days of notice of demand. (section 253(1)). • No obligation to file reference as under SICA. • No accumulated loss criterion, hence no determination of Net Worth as under SICA. • The term “Sick Company” has not been defined in the New Act, the ambit of these provisions now include every company (and not only Industrial companies). • No concept of Potentially Sick Industrial Company in the New Act. • Only on application under section 253(2), NCLT may order to stay any proceedings as specified under section 253(2) in respect of the company. The stay would be operative for a period of 120 days.

  29. Revival and Rehabilitation of Sick Companies:Chapter XIX (Sections 253 - 269) • Company may also file an application to NCLT on the grounds mentioned herein before. • CG/RBI/SG/PFI/SLI/SB may, if it has sufficient reasons to believe that any company has become, for the purposes of this Act, a sick company, make a reference for measures. • 60 days period from receipt of application with NCLT to determine whether the company is a sick company or not.

  30. Revival and Rehabilitation of Sick Companies:Chapter XIX (Sections 253 - 269) • Pursuant to filing of an application, in terms of section 253 of the New Act, the company shall not: • dispose of any assets; or • otherwise enter into any obligation; with regard to its properties or assets, except, if done in the normal course of business. (section253(6)) • Once the company has been determined as a sick company in terms of these provisions, then the secured creditors may make an application within a period of 60 days to NCLT for the determination of the measures that may be adopted with respect to revival and rehabilitation of such company. (section254(3)) • SARFAESI Act shall have an overriding effect on the provisions of Chapter XIX for abatement of any reference made or to be made under section 253 , if;

  31. Revival and Rehabilitation of Sick Companies:Chapter XIX (Sections 253 - 269) • The secured creditors representing 75% of outstanding debt have taken measures to recover their debts under the SARFAESI Act, or; • No permission has been procured by the securitisation or reconstruction company which has taken over the assets of the company in terms of section 5 (1) of the SARFAESI Act. (section254) • The revival and rehabilitation through a scheme shall now require the approval of the secured creditors representing three-fourth in value of the amount outstanding against financial assistance disbursement and unsecured creditors representing one-fourth in value of the amount owed by company to such creditors, in a meeting convened by the company administrator. (section262(2)) • Once approved, the Scheme or any provision thereof, shall have a binding effect from the date it becomes operative on the sick company, the transferee company or as the case may be, the other company, the employees, shareholders, creditors and guarantors of the said companies.

  32. Section wise powers of NCLT referenced under the New Act

  33. Section wise powers of NCLT referenced under the New Act

  34. Section wise powers of NCLT referenced under the New Act

  35. Section wise powers of NCLT referenced under the New Act

  36. Section wise powers of NCLT referenced under the New Act

  37. Section wise powers of NCLT referenced under the New Act

  38. Section wise powers of NCLT referenced under the New Act

  39. Section wise powers of NCLT referenced under the New Act

  40. Section wise powers of NCLT referenced under the New Act

  41. THANK YOU For any further clarifications, please contact: Mr. Satwinder Singh (Partner), Vaish Associates, satwinder@vaishlaw.com;+91-9871686000 • Disclaimer:Please note that this presentation is based on the limited information / documentation available with us and is subject to review of further documentation to be received in this regard. While every care has been taken to ensure accuracy of this presentation, Vaish Associates Advocates shall not assume any liability / responsibility for any errors that might creep in. The material herein does not constitute / substitute professional advice that may be required before acting on any matter.

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