Sanoj Kumar

Sanoj KumarArticle analyses Rule wise National Company Law Tribunal (Amendment) Rules, 2016 which come into force w.e.f 20th December, 2016

Central Government exercise the power conferred by section 469(1) & (2) of the Companies Act, 2013 and make a rule to amend the National Company Law Tribunal Rules, 2016 namely, National Company Law Tribunal (Amendment) Rules, 2016 come into force w.e.f 20th December, 2016.

Analysis:

Sr. No Rules Particulars Effect of National Company Law Tribunal (Amendment) Rules, 2016.
1 2(5) Definition of application Application means any application, Interlocutory  application or proceeding filed under the provisions of the act including transferred application or transferred petition as defined under sub rule 29
2 2(9)(d) Certified copy A copy of documents which is downloaded under section 398 of the Companies Act, 2013 or photocopy of the original pertaining to any company registered with the office of the registrar of the Companies of the concerned state duly certified by a legal practitioner or Chartered Accountant or Cost Accountant or Company Secretary; Chartered Accountant in practice or Cost Accountant in practice or Company Secretary in practice.
3 23A Presentation of joint petition. (1) The Bench may permit more than one person to join together and present a single petition if it is satisfied, having regard to the cause of action and the nature of relief prayed for, that they have a Common interest in the matter.

(2) Such permission shall be granted where the joining of the petitioners by a single petition is specifically permitted by the Act.”

4 25 Lodging of caveat Any person may lodge a caveat in triplicate in any appeal or petition or application that may be instituted  before this Tribunal by paying the prescribed fee after forwarding a copy by registered post or serving the same on the expected petitioner or appellant and the caveat  shall  be  in  the  form  prescribed   (NCLT 3C)  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

Tribunal may pass interim orders in case of urgency.

The caveat shall remain valid for a period of 90 Days from the date of its filing

5 27(1) Translation of Documents A document other than English language intended to be used in any proceeding before the Tribunal shall be received by the Registry accompanied by a copy in English, which is agreed to by both the parties or certified to be a true translated copy by authorised representative engaged on behalf of parties in the case ( or by any other advocate or authorised representative whether engaged in the case or not or if the advocate or authorised representative engaged in the case authenticates such certificate or prepared by a transalator approved for the purpose by the Registrar on payment of such charges as he may order) or if the 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
6 38(1) Service of Notices and processes Any notice or process to be issued by the Tribunal may be served  by post  or by “courier” or at the e-mail address as provided in the petition or application or in the reply
7 38(2) The notice or process if to be served physically may be served in any one of the following modes as may be directed by the Tribunal; –

(a)  by hand delivery through a process server or respective authorised
representative;

(b)  by registered post or speed post with acknowledgment  due or by “courier”; or

(c)  Service by the party himself.

(Explanation.—For the purposes of sub-rules (1) and (2), the term ‘‘courier’’ means a person or agency which delivers the document and provides proof of its delivery.)

8 38A Multiple remedies A 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.”
9 68A Application to cancel variation of rights under sub-section (2) of section 48.- (1) Where an application to cancel a variation of the rights attached to the shares of any class is made on behalf of the shareholders of that class entitled to apply for cancellation under sub-section (2) of section 48 by the letter of authority signed by the shareholders so entitled, authorising the applicant or applicants to present the application on their behalf, such letter of authority shall be annexed to the application, and the names and addresses of all the shareholders, the number of shares held by each of them, aggregate number of such shares held and percentage of the issued shares of that class shall be set out in the Schedule to the application.

(2) The application in Form No. NCLT. 1 shall be accompanied by documents required for the purposes of the case and shall set out –

(a) the particulars of registration;

(b) the capital structure, the different classes of shares into which the share capital of the company is divided and the rights attached to each class of shares;

(c) the provisions of the memorandum or articles authorising the variation of the rights attached to the various classes of shares;

(d) the total number of shares of the class whose rights have been varied;

(e) the nature of the variation made, and so far as may have been ascertained by the applicants, the number of shareholders of the class who gave their consent to the variation or voted in favour of the resolution for variation and the number of shares held by them;

(f) the number of shareholders who did not consent to the variation or who voted against the resolution, and the number of shares held by them;

(g) the date on which the consent was given or the resolution was passed; and

(h) the reasons for opposing the variation.

(3) The applicant shall at least fourteen days before the date of the filing of the petition advertise the application in Accordance with rule 35.

(4) Where any objection of any person whose interest is likely to be affected by the proposed application is received by

the applicant, a copy thereof shall be served to the Registrar of Companies and Regional Director on or before the date of hearing.

(5) On any application, the Tribunal, after hearing the applicant and any other person, as appears to it, to be interested in

the application, may, if it is satisfied, having regard to all the circumstances of the case that the variation would unfairly

prejudice to the shareholders of the class represented by the applicant, cancel the variation and shall, if not so satisfied, confirm the variation for reasons to be recorded:

Provided that the Tribunal may, at its discretion, make such orders as to cost as it thinks fit.”

Section 48(2) of the Companies Act, 2013 says about Cancellation of variation of shareholders right: where the holders of 10% of the issued share capital do not consent to such variation, or vote in favour of the special resolution for the variation, they may apply to Tribunal within 21 Days after the day on which the consent was given or the resolution was passed to have the variation cancelled.

10 76A Application under section 130; (Re-opening of Account on Court’s or Tribunal’s orders) w.e.f 01-06-2016 The Central Government, the Income-tax authorities, the Securities and Exchange Board of India, any other statutory regulatory body or authority or any person concerned may file an application in Form No. NCLT. 9 for re-opening of books of accounts and for re-casting of financial statement of a company under section 130 of the Act and such application shall be accompanied by such documents as mentioned in Annexure-B
11 83A Application under sub-section (1) of section 244 An application in Form No. NCLT. 9 may be filed before the Tribunal for waiver of requirement of clause (a) or (b) of Section 244 of the Act which shall be accompanied by such documents as mentioned in Annexure-B

241:- Application to Tribunal for relief in case of oppression

Section 244:- says about right to apply under section 241 that is:

“FORM No. NCLT 3-C

[See rule 25]

Before the National Company Law Tribunal

(Caveat No. ____of 20 )

Heading as in FORM No. NCLT 4.

Memorandum of Caveat

1. Set out details of the order against which appeal or application or petition is expected.

2. (a) Address for service on the caveator

(b) Address for service on the Counsel for the caveator

3. Specify the authority who passed the order with reference number and date (enclose copy of order appealed against).

4. Set out the details of expected Appellant (s)/Petitioner (s)/ Applicant(s)/ With address

(i) ___________

(ii) ___________

(iii) ___________

5. Prayer: Let no orders be passed in the appeal expected to be filed or in any petition or application or interlocutory application that may be preferred by the expected Appellant/Petitioner/Applicant without service of notice on the caveator.

The caveator undertakes to accept service of appeal or petition or application and appear before this Tribunal on the date and time at which the appeal / petition / application  is moved by expected appellant/petitioner/ Applicant.

Dated at ___________Day_________of (Month)

Counsel for Caveator

Caveator

Verification

The caveator above named state and verify that the contents of this caveat lodged are true and correct.

Verified at New Delhi on This __________day of _________20 .

Caveator”

Annexure B;

Enclosures to the Petition

1. Document and / or other evidence in support of the statement made in the application or appeal or petition, as are reasonably open to the petitioner(s);

2. Documentary evidence in proof of the eligibility and status of the petitioners with the voting power held by each of them, wherever applicable;

3. Where the petition is presented on behalf of members, the letter of consent given by them, if applicable

4. Statement of particulars showing names, address, number of shares held, and whether all calls and other monies due on shares have been paid in respect of members who have given consent to the petition being presented on their behalf;

5. Where the petition is presented by a member or members authorised by the Central Government, the order of the Central Government authorising the officer(s) or member or members to present the petition shall be similarly annexed to the petition;

6. Affidavit verifying the petition;

7. Evidence regarding payment of fee;

8. Memorandum of appearance with copy of the Board resolution or the vakalatnama, as the case may be;

9. Three copies of the petition; and

10. Any other documents in support of the case.

Disclaimer: The entire contents of above document have been prepared on the basis of National Company Law Tribunal (Amendment) Rules, 2016.  Whereas deep care has been taken by author to ensure the correctness and completeness of the information provided.

This is nothing but a knowledge sharing initiative by author and author do not intend to accost any business or profession.

(Authored is a CS Management Trainee and can be reached at Mob: 8285189599)

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Category : Company Law (3346)
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Tags : Companies Act (1815) Companies Act 2013 (1589) nclt (72)

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