Role of Company Secretary In National Company Law Tribunal (NCLT) & National Company Law Appellate Tribunal (NCLAT)
Who is Company Secretary?
As per Companies Act, 2013, a company secretary or secretary means a company secretary as defined in clause (c) of subsection (1) of section 2 of the Company Secretaries Act, 1980.
What is National Company Law Tribunal (NCLT) ?
NCLT consolidate the corporate jurisdiction of the following: –
Structure of National Company Law Tribunal (NCLT)
| Principal Bench
|Other Benches as may be notified by Central Government|
|JUDICIAL MEMBER||TECHNICAL MEMBER|
Members of Tribunal
> President – Judge of High Court for 5 years
> Judicial Member– Judicial Member of NCLT or held a judicial Office for 5 years or Advocate of the High Court for 5 years
> Technical Member – CA/CS/ICWA for at least 15 years and Other applicable criteria
In exercise of the powers conferred by section 410 of the Companies Act, 2013, the Central Government hereby constitutes the National Company Law Appellate Tribunal for hearing appeals against the orders of the National Company Law Tribunal with effect from the 1st day of June, 2016.
The NCLT is functioning with it’s eleven Benches – two at New Delhi and one each at Ahmadabad, Allahabad, Bangalore, Chandigarh, Chennai, Guwahati, Hyderabad, Kolkata and Mumbai. The Principal Bench of the NCLT will be at New Delhi.
NATIONAL COMPANY LAW TRIBUNAL POWERS
> Powers in terms of the LLP Act, 2008
> Revival and Rehabilitation of Sick Companies
> Rectification of Register(s)
> Complaints relating to refusal to transfer/ of transmission of shares
> Investigation and compounding
> Class Action suits
> Oppression and Mismanagement
> Winding Up
Major Sections of Companies Act, 2013 Deals in NCLT & NCLAT
|1.||Section 7(7) [except clause (c) and (d)]|| Incorporation of Companies (furnishing false or incorrect information).
|2.||Section 14 (1) and (2)||Alteration of Articles(conversion of public Company to private Company).|
|3.||Section 55 (3)||Issue and redemption of preference shares.|
|4.||Section 61(1)(b)||Changes in voting rights by Consolidation or sub-division of share Capital.|
|5.||Section 66||Reduction of Share capital.|
|6.||Section 75||Damages for fraud (fail to repay and interest thereon in terms of Section 74(2).)|
|7.||Section 97,98 and 99||Power of the tribunal to call annual general meetings and meetings of member.|
|8.||Section 131||Voluntary revision of financial statements or Board’s Report|
|9.||Section 140 second proviso to sub-section (4) and sub-section(5)||Removal, resignation of auditor and giving of special notice.|
|10.||Section 169(4)||Removal of Directors.|
|11.||Section 218||Protection of employees during investigation|
|12.||Section 221||Freezing of assets of company on inquiry and investigation.|
|13.||Section 241, 242, (except clause (b) of sub section (1), clause (c) & (g) of sub-section (2), 243, 244 and 245.||Prevention of Oppression and Mismanagement|
|14.||Section 441||Compounding of certain offences|
Right to legal representation
As per 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 authorize one or more:-
What is National Company Law Appellate Tribunal (NCLAT)?
National Company Law Appellate Tribunal is new Forum of Quasi Judicial and Have Following Powers:-
STRUCTURE OF NCLAT
|JUDICIAL MEMBER||TECHNICAL MEMBER|
Definition of Certain Terms
Section 434 has provided following, transfer of pending cases :-
REMEDIES FOR PERSON AGGRIEVED BY ORDER
NCLT: Any person aggrieved by the order of NCLT then appeal any order on Question of Law and Fact within 45 Days to NCLAT.
NCLAT: Any person aggrieved by the order of NCLAT then appeal on Question of Law within 60 Days to Supreme Court.
SCOPE FOR COMPANY SECRETARIES
Establishment of NCLT/NCLAT shall offer various following opportunities to Practicing Company Secretaries as they have been authorized to appear before the Tribunal/ Appellate tribunal:-
Role of Company Secretary
Revival & Rehabilitation of Sick Companies
Reduction of capital
Member of NCLT
A Practicing Company Secretary can be Appointed as a Technical Member of NCLT, provided he has 15 years working experiences as Secretary in Whole-Time Practice.
Other related Matters
CHALLENGES FOR COMPANY SECRETARIES
With every opportunity there comes challenges for the professionals in the manner of dealing with the cases with NCLT and NCLAT like court craft and art of advocacy etc, since the cases that are being dealt with Company Law Board, High Court and BIFR will be now dealt by NCLT and NCLAT.
ART OF ADVOCACY
Preparation and Rehearsal
In the view of vast opportunities emerging with establishment of National Company Law Tribunal, the Practicing Company Secretaries should standardize their competencies with the global benchmarks to provide value added services in assisting the Tribunal in: