Procedural aspects of NCLT and NCLAT

Table of Contents

1. Background

2. Institution of proceedings, petition, appeals before NCLT and NCLAT

3. Presentation of petition or appeal

4. Procedure after filing of appeal in office of NCLT and NCLAT

5. Production of Evidence by Affidavit

6. Hearing of petition or applications

7. Party can appear before NCLT in person or through authorized representative

8. Consequence of non-appearance of applicant or respondent

9. Reference or complaint to NCLT in Form NCLT 9

10. Inspection of records by parties

11. Affidavits

12. Discovery, production and return of documents

13. Examination of witnesses and issue of commissions

14. Disposal of cases and pronouncement of orders

15. Rectification of Order by NCLT

16. NCLT and NCLAT can award cost and even exemplary cost on defaulting party

17. Forms in respect of NCLT

Checkout Taxmann's Law Practice & Procedure of National Company Law Tribunal

1. Background

General procedures relating to NCLT and NCLAT have been specified in NCLT Rules, 2016 and NCLAT Rules, 2016.

Many of the procedures and provisions are common to NCLT and NCLAT. In few cases, there is some deviations, though not major deviations. Wherever procedures are common, reference to both rules have been given.

Procedures applicable to both NCLT and NCLAT are discussed first. Procedures specifically applicable to NCLT and NCLAT are discussed later.

NCLT Rules, 2016 also provide for specific procedures in respect of various sections of Companies Act, 2013, under which NCLT is empowered to pass orders. Provisions in that regard are discussed under each such section of the Companies Act, 2013.

1.1 Overview of procedures before NCLT

Overview of procedures to be followed before NCLT, as specified vide National Company Law Tribunal Rules, 2016, notified on 21-7-2016 are summarized below.

The rules provide for internal management of NCLT and also procedural aspects.

Powers and functions of President of NCLT have been specified in rule 16 of NCLT Rules, 2016,

Powers and functions of Registrar of NCLT have been specified in rule 17 of NCLT Rules, 2016,

There will be Secretary at Principal Bench of NCLT at Delhi. His powers and functions have been specified in rule 18 of NCLT Rules, 2016,

Appeal, petition or application or caveat petition or objection or counter before NCLT shall be in English and in triplicate, typed or printed in double spacing of standard petition paper with proper margins. Details to be given are specified in rules 20 and 21 of NCLT Rules, 2016,

It should be indexed and stitched together in a paper book form.

Appeal shall be divided in paragraphs and numbered consecutively.

Appeal, application, caveat or petition should be in triplicate. Appeal should be accompanied by certified copy of order appealed against.

One copy of appeal should be given to opposite party,

The general heading in all proceedings before tribunal, in all advertisements and notices shall be in form NCLT.4

Petition, application or reference shall be in form NCLT.1

It should be accompanied by form NCLT.2 (Notice of Admission) [This form is practically doing work which office of NCLT is expected to do].

In case of interlocutory application, form NCLT.1 should be accompanied by form NCLT.3.

Petition or application including interlocutory application shall be verified in form NCLT.6.

Notice to opposite party shall be issued in form NCLT.5.

If advertisement is to be published, it should be in form NCLT.3A. The requirements of notice have been specified in rule 35 of NCLT Rules, 2016.

Appeal should be accompanied with prescribed fees and envelopes and notice of forms as specified.

The fees payable are prescribed in rule 165 of NCLT Rules, 2016. Fees are payable by way of demand draft drawn in favour of Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi/Kolkata/Chennai/Mumbai as applicable.

Appeal should be filed in person or through authorized representative.

Acknowledgement will be given on submission of appeal. If there are defects, the appeal will be returned for rectification.

If affidavit is to be filed, it should be in form NCLT.7. Requirements of affidavit are given in rules 125 to 230 of NCLT Rules, 2016.

Special procedures for applications, petition or appeals under various sections have been specified in rules 66 to 88 of NCLT Rules, 2016.

List of documents to be filed in each case are specified in Annexure 8 of NCLT Rules, 2016,

A person can appear in person or through authorized representative. Appearance should be by filing vakalatnama or memorandum of appearance in form No. NCLT.12.

Authorised representative can make application in form NCLT.10 to Registrar to appoint a person as his intern. Such intern can have access to records and obtain copies of orders of bench of NCLT.

Witnesses can be examined on oath.

If petitioner appears but respondent does not, NCLT can pass ex parte order on merit.

Application for execution of order shall be in form NCLT.8.

Application for rectification of order can be made in form NCLT.9 within two years – rule 154 of NCLT Rules, 2016.

Order of NCLT should be filed with ROC in form INC.28 with fees.

These are discussed in greater details in following paragraphs.

1.2 General powers of NCLT and NCLAT

Some general powers of NCLT and NCLAT are as follows.

Power to exempt from compliance of these rules – NCLT and NCLAT may, on sufficient cause being shown, exempt the parties from compliance with any requirement of these rules and may give such directions in matters of practice and procedure, as it may consider just and expedient on the application moved in this behalf to render substantial justice – Rule 14 of NCLT Rules, 2016 and Rule 14 of NCLAT Rules, 2016.

Power to extend time for doing any Act – NCLT and NCLAT may extend the time appointed by these rules or fixed by any order, for doing any act or taking any proceeding, upon such terms, if any, as the justice of the case may require, and any enlargement may be ordered, although the application therefore is not made until after the expiration of the time appointed or allowed – Rule 15 of NCLT Rules, 2016 and Rule 15 of NCLAT Rules, 2016.

Inherent Powers of NCLT and NCLAT – NCLT and NCLAT have inherent powers to make such orders as may be necessary for meeting the ends of justice or to prevent abuse of the process of NCLT – Rule 11 of NCLT Rules, 2016 and Rule 11 of NCLAT Rules, 2016.

See further discussions on ‘inherent powers’ of NCLT and NCLAT in another chapter.

1.3 Timings and sittings of NCLT and NCLAT

NCLT shall hold its sittings either at its headquarter or at such other place falling within its territorial jurisdiction as it may consider convenient. Thus, circuit benches are possible – Rule 8 of NCLT Rules, 2016.

NCLAT shall hold its sittings at it HQ in New Delhi – Rule 8 of NCLAT Rules, 2016 [No provision for circuit benches].

Sitting hours of NCLT and NCLAT – The sitting hours of NCLT shall ordinarily be from 10:30 AM to 1:00 PM and 2:00 P.M. to 4:30 PM – Rule 9 of NCLT Rules, 2016.

The sitting hours of NCLAT shall ordinarily be from 9:30 AM to 1:00 PM and 2.15 P.M. to 5.00 PM – Rule 9 of NCLAT Rules, 2016.

Working hours of office of NCLT and NCLAT – The office of NCLT and NCLAT and shall remain open on all working days from 9.30 A.M. to 6.00 P.M Rule 10(1) of NCLT Rules, 2016 and – Rule 10(1) of NCLAT Rules, 2016.

The Filing Counter of the Registry of NCLT and NCLAT shall be open on all working days from 10.30 AM to 5.00 P.M – Rule 10(2) of NCLT Rules, 2016 and – Rule 10(2) of NCLAT Rules, 2016.

1.4 Listing of urgent cases

An urgent matter filed before 12 noon shall be listed before NCLT and NCLAT on the following working day, if it is complete in all respects as provided in these rules and in exceptional cases, it may be received after 12 noon but before 3.00 P.M. for listing on the following day, with the specific permission of the Bench – Rule 13 of NCLT Rules, 2016 and Rule 13 of NCLAT Rules, 2016.

2. Institution of proceedings, petition, appeals before NCLT and NCLAT

Procedure, as specified in Rule 20 of NCLT Rules, 2016 and Rule 19 of NCLAT Rules, 2016 is briefly as follows.

Language of NCLT and NCLAT– Every appeal or petition or application or caveat petition or objection or counter presented to NCLT and NCLAT shall be in English. If it is in some other Indian language, it shall be accompanied by a copy translated in English – Rule 20(1) of NCLT Rules, 2016 and Rule 19(1) of NCLAT Rules, 2016.

Typing or printing and indexing – Appeal or petition or application shall be fairly and legibly type written, lithographed or printed in double spacing on one side of standard petition paper with an inner margin of about four centimeter width on top and with a right margin of 2.5. cm, and left margin of 5 cm, duly paginated, indexed and stitched together in paper book form.

The cause title shall state “Before the National Company Law Tribunal” or “Before the National Company Law Appellate Tribunal” and shall specify the Bench to which it is presented and also set out the proceedings or order of the authority against which it is preferred.

Cause title and paragraphs – Appeal or petition or application or counter or objections shall be divided into paragraphs and shall be numbered consecutively and each paragraph shall contain as nearly as may be, a separate fact or allegation or point.

Provision of law to be indicated after cause title – Every proceeding shall state immediately after the cause title the provision of law under which it is preferred – Rule 20(9) of NCLT Rules, 2016 and Rule 19(8) of NCLAT Rules, 2016.

Details of each party – Full name, parentage, age, description of each party and address and in case a party sues or being sued in a representative character, shall also be set out at the beginning of the appeal or petition or application. It need not be repeated in the subsequent proceedings in the same appeal or petition or application.

Numbers to be given to parties – The names of parties shall be numbered consecutively and a separate line should be allotted to the name and description of each party – Rule 20(6) of NCLT Rules, 2016 and Rule 19(6) of NCLAT Rules, 2016.

These numbers shall not be changed and in the event of the death of a party during the pendency of the appeal or petition or matter, his legal heirs or representative, as the case may be, if more than one shall be shown by sub-numbers.

Where fresh parties are brought in, they may be numbered consecutively in the particular category, in which they are brought in – Rule 20(8) of NCLT Rules, 2016 and Rule 19(7) of NCLAT Rules, 2016.

2.1 Particulars to be set out in the address for service

The address for service of summons shall be filed with every appeal or petition or application or caveat on behalf of a party and shall as far as possible contain the details as specified in Rule 21 of NCLT Rules, 2016 and Rule 20 of NCLAT Rules, 2016.

2.2 Initialling alteration

Every interlineations, eraser or correction or deletion in any appeal or petition or application or document shall be initialled by the party or his authorised representative presenting it – Rule 22 of NCLT Rules, 2016 and Rule 21 of NCLAT Rules, 2016.

2.3 Production of authorisation for and on behalf of an association

Where an appeal or application or petition or other proceeding purported to be instituted by or on behalf of an association, the person or persons who sign(s) or verify(ies) the same shall produce along with such application, for verification by the Registry, a true copy of the resolution of the association empowering such person(s) to do so.

The document shall set out the list of members for whose benefit the proceedings are instituted.

Registrar may at any time call upon the party to produce such further materials as he deems fit for satisfying himself about due authorization – Rule 31 of NCLT Rules, 2016 and Rule 30 of NCLAT Rules, 2016.

3. Presentation of petition or appeal

Rule 23 of NCLT Rules, 2016 and Rule 22 of NCLAT Rules, 2016 state as follows.

Petition or appeal in triplicate to be presented physically and not through post – Every petition, application, caveat, interlocutory application, documents and appeal shall be presented in triplicate by the appellant or applicant or petitioner or respondent, as the case may be, in person or by his duly authorised representative or by an advocate duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter.

Non-compliance of this may constitute a valid ground to refuse to entertain the same.

Documents to be duly certified with index – Every petition or application or appeal may be accompanied by documents duly certified by the authorised representative or advocate filing the petition or application or appeal duly verified from the originals.

All the documents filed in NCLT and NCLAT shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon.

Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed under these rules.

In the pending matters, all applications shall be presented after serving copies thereof in advance on the opposite side or his authorised representative.

Meaning of ‘Certified’ – “Certified” means in relation to a copy of a document – (a) certified as provided in section 76 of the Indian Evidence Act, 1872; or (b) certified as provided in section 6 of Information Technology Act, 2000; or (c) certified copy issued by the Registrar of Companies under the Act or (d) copy of document as may be a downloaded from any online portal prescribed under section 398 of the Act or a photo copy of the original pertaining to any company registered with the Office of the Registrar of Companies of the concerned State duly certified by a legal practitioner or a chartered accountant in practice or a cost accountant or a company secretary in practice – rule 2(9) of NCLT Rules, 2016.

Processing fees to be paid – The processing fee prescribed by these rules, with required number of envelopes of sufficient size and notice forms shall be filled along with memorandum of appeal.

3.1 Fees payable with application, petition or appeal

Section 459(2) of Companies Act, 2013 empowers Central Government to prescribe payment of fees while making any application before NCLT for any approval, sanction, consent, confirmation, direction etc.

Fees payable are specified in Schedule to NCLT Rules, 2016 and NCLAT Rules, 2016. Fees are payable on interlocutory application also. Fees are payable by way of demand draft drawn in favour of Pay and Accounts Officer, Ministry of Corporate Affairs New Delhi/Kolkata/Chennai/Mumbai as decided by President of NCLT – Rule 112 of NCLT Rules, 2016 and Rule 55 of NCLAT Rules, 2016.

Fee for appeal before NCLAT – Fee for filing appeal or interlocutory application, and process fee shall be as follows (schedule to NCLAT Rules, 2016) (a) Protection of employee during investigation under section 218(3) of Companies Act, 2013 – Rs 1,000 (b) Appeal to NCLAT under section 421(1) of Companies Act, 2013 – Rs 5,000.

3.2 Three copies of petition or application to be filed and copy to be delivered to opposite party

The appellant or petitioner or applicant or respondent shall file three authenticated copies of appeal or petition or application or counter or objections, as the case may be, and shall deliver one copy to each of the opposite party – Rule 24 of NCLT Rules, 2016 and Rule 23 of NCLAT Rules, 2016.

3.3 Endorsement and Verification on petition or appeal

At the foot of every petition or appeal or pleading there shall appear the name and signature of the authorised representative.

Every petition or appeal shall be signed and verified by the party concerned in the manner provided by these rules – Rule 26 of NCLT Rules, 2016 and Rule 24 of NCLAT Rules, 2016.

3.4 Translation of document

A document other than English language intended to be used in any proceeding before NCLT or NCLAT shall be received by the Registry accompanied by a copy in English. This should be agreed to by both the parties or certified to be a true translated copy by (a) authorised representative engaged on behalf of parties in the case or (b) by any other advocate or authorised representative whether engaged in the case or not or (c) if the advocate or 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.

In case of NCLAT, only clause (a) applies and not clause (b) or (c).

Appeal or petition or other proceeding shall not be set down for hearing until and unless all parties confirm that all the documents filed on which they intend to rely are in English or have been translated into English and required number of copies are filed into Tribunal – Rule 27 of NCLT Rules, 2016 and Rule 25 of NCLAT Rules, 2016.

3.5 Lodging of caveat before NCLT

Any person may lodge a caveat in triplicate in any appeal or petition or application that may be instituted before NCLT by paying the prescribed fee after forwarding a copy by registered post or serving the same on the expected petitioner or appellant.

Caveat shall be in the form prescribed 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:

The caveat shall remain valid for a period of ninety days from the date of its filing – Rule 25 of NCLT Rules, 2016.

NCLT may pass interim orders in case of urgency in case of lodging of caveat.

No provision for filing caveat before NCLAT – There is no specific provision in NCLAT Rules, 2016 for filing a caveat. However, it does not mean that Caveat cannot be filed.

3.6 Interlocutory applications

Every Interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appealed against or extension of time prayed for in pending matters shall be in prescribed form (NCLT.1 accompanied by such attachments thereto along with Form No. NCLT. 3) and the requirements prescribed in that behalf shall be complied with by the applicant, besides filing an affidavit supporting the application – Rule 32 of NCLT Rules, 2016.

Every petition or application including interlocutory application shall be verified by an affidavit in Form No. NCLT.6.

Appeal against interim order of NCLT – Any person aggrieved by an order or decision of the Tribunal (NCLT) may prefer an appeal to the Appellate Tribunal. (NCLAT) [section 421(1) of Companies Act, 2013].

Since appeal can be filed against any order or decision, appeal can be filed against interim order also.

In Purnima Manthena v. Dr Renuka Datla (2015) 62 taxmann.com 89 (SC), it has been held that while hearing appeal against interim order, High Court (now NCLAT) should not take up elaborate exercise of appreciating complete records and facts of the case, which have not been considered by the lower authority.

Application to NCLAT for interlocutory orders – In case of NCLAT, the form prescribed in NCLAT.2 for filing interlocutory applications – Rule 31 of NCLAT Rules, 2016.

3.7 The matters pending before CLB have been transferred to NCLT

If matter was part heard, the proceedings shall continue from that stage. However, if the order was reserved by the Company Law Board, fresh hearing will take place – Rule 64(1) of NCLT Rules, 2016.

A fresh petition or an application may also be filed in Form NCLT 1 corresponding to those provisions of the Act, if both the parties thereto so consent with the approval of NCLT while withdrawing the proceedings as already continued before the Company Law Board and serve a copy of the petition on the parties.

Procedure as specified in rule 64 of NCLT Rules, 2016 shall be followed.

3.8 Petition or Application under section 45QA(2) of RBI

Provisions of NCLT rules shall apply, mutatis mutandis, to the application or petition made under section 45QA(2) of RBI Act – Rule 65 of NCLT Rules, 2016.

3.9 Multiple reliefs on single cause of action

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 – rule 38A of NCLT Rules, 2016.

3.10 Special procedure for application under various provisions

Special procedure for application under various sections of Act have been specified rules 66 to 88 of NCLT Rules, 2016. These are discussed under each relevant section.

4. Procedure after filing of appeal in office of NCLT and NCLAT

The procedure at office of NCLT and NCLAT, after filing of appeal is as follows.

Endorsement and scrutiny of petition or appeal or document at time of filing – The person in charge of the filing-counter shall immediately on receipt of petition or appeal or application or document affix the date stamp of Tribunal thereon and also on the additional copies of the index and return the acknowledgement to the party and he shall also affix his initials on the stamp affixed on the first page of the copies and enter the particulars of all such documents in the register after daily filing and assign a diary number which shall be entered below the date stamp and thereafter cause it to be sent for scrutiny – Rule 28(1) of NCLT Rules, 2016 and Rule 26(1) of NCLAT Rules, 2016.

Return or reject petition after scrutiny– If, on scrutiny, the appeal or petition or application or document is found to be defective, such document shall, after notice to the party, be returned for compliance and if there is a failure to comply within seven days from the date of return, the same shall be placed before the Registrar who may pass appropriate orders – Rule 28(3) and 28(4) of NCLT Rules, 2016 and Rule 26(2) and 26(3) of NCLAT Rules, 2016.

Appeal against if any person is aggrieved of the decision of the Registrar or such other officer officiating as the Registrar of the Benches, an appeal against the order of the Registrar shall be made within fifteen days of the making of such order to the President of the Principal Bench and at other places to any Member of the Bench designated by the President, and whose decision thereon shall be final – Rule 63 of NCLT Rules, 2016.

There seems to be no specific provision in NCLAT Rules, 2016 for such appeal against decision of Registrar.

Rectification of document filed – The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party concerned such reasonable time as he may consider necessary or extend the time for compliance.

Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the pleading or document – Rule 28(4) of NCLT Rules, 2016 and Rule 26(4) of NCLAT Rules, 2016.

4.1 Registration of proceedings admitted

On admission of appeal or petition or caveat or application, the same shall be numbered and registered in the appropriate register maintained in this behalf and its number shall be entered therein – Rule 29 of NCLT Rules, 2016 and Rule 27 of NCLAT Rules, 2016.

4.2 Calling for records

On the admission of appeal or petition or application the Registrar shall, if so directed by NCLT or NCLAT (as applicable), call for the records relating to the proceedings from any adjudicating authority and retransmit the same – Rule 30 of NCLT Rules, 2016 and Rule 29 of NCLAT Rules, 2016.

4.3 Procedure on production of defaced, torn or damaged documents

When a document produced along with any pleading appears to be defaced, torn, or in any way damaged or otherwise its condition or appearance requires special notice, a mention regarding its condition and appearance shall be made by the party producing the same in the Index of such a pleading and the same shall be verified and initialled by the officer authorized to receive the same – Rule 33 of NCLT Rules, 2016 and Rule 32 of NCLAT Rules, 2016.

4.4 General heading in all advertisement and notices

The general heading in all proceedings before NCLT, in all advertisements and notices shall be in Form No. NCLT. 4 – Rule 34(2) of NCLT Rules, 2016.

There is no such general provision in NCLAT Rules, as the prescribed forms themselves indicate the general heading.

4.5 Forms of petition or application or notice

Every petition or application or reference shall be filed in form as provided in Form No. NCLT.1 with attachments thereto accompanied by Form No. NCLT.2. In case of an interlocutory application, the same shall be filed in Form No. NCLT.1 accompanied by such attachments thereto along with Form No. NCLT. 3 – Rule 34(3) of NCLT Rules, 2016.

Every petition or application including interlocutory application shall be verified by an affidavit in Form No. NCLT.6.

Notice to be issued by NCLT to the opposite party shall be in Form NCLT-5 – Rule 34(4) of NCLT Rules, 2016.

In case of NCLAT, the appeal shall be in form NCLAT.1.

4.6 Advertisement detailing petition

If any application, petition or reference is required to be advertised, it shall, unless NCLT otherwise orders, or these rules otherwise provide, be advertised in Form NCLT.3A. not less than fourteen days before the date fixed for hearing, at least once in a vernacular newspaper in the principal vernacular language of the district in which the registered office of the company is situate, and at least once in English language in an English newspaper circulating in that district.

Contents of the advertisement are as specified in Rule 35(2) of NCLT Rules, 2016.

Where the advertisement is being given by the company, then the same may also be placed on the website of the company, if any.

Affidavit with copy of advertisement –An affidavit shall be filed to NCLT, not less than three days before the date fixed for hearing, stating whether the petition has been advertised in accordance with this rule and whether the notices, if any, have been duly served upon the persons required to he served. The affidavit shall be accompanied with such proof of advertisement or of the service, as may be available – Rule 35(4) of NCLT Rules, 2016.

Where the requirements of this rule or the direction of NCLT, as regards the advertisement and service of petition, are not complied with, NCLT may either dismiss the petition or give such further directions as it thinks fit.

NCLT can dispense with advertisement – NCLT may, if it thinks fit, and upon an application being made by the party, may dispense with any advertisement required to be published under rule 35 – Rule 35(6) of NCLT Rules, 2016.

4.7 Notice to Opposite Party

NCLT shall issue notice to the respondent to show cause against the application or petition on a date of hearing to be specified in the Notice. Such notice in Form No. NCLT.5 shall be accompanied by a copy of the application with supporting documents.

Reply to notice – If the respondent contests to the notice received by him, he may, either in person or through an authorised representative, file a reply accompanied with an affidavit and along with copies of such documents on which it relies, with an advance service to the petitioner or applicant, to the Registry before the date of hearing. Such reply and copies of documents shall form part of the record.

4.8 Ex parte disposal if respondent does not appear

If the respondent does not appear on the date specified in the notice in Form No. NCLT.5, NCLT, after according reasonable opportunity to the respondent, shall forthwith proceed ex-parte to dispose of the application – Rule 37(2) of NCLT Rules, 2016.

Similar provision has been made in Rule 49(1) of NCLT Rules, 2016, with slightly different wordings.

Provisions in NCLAT Rules in respect of Non-appearance of respondent and consequences – Where the respondent, despite effective service of summons or notice on him does not appear before the date fixed for hearing, NCLAT may proceed to hear the appeal ex-parte and pass final order on merits.

It is open to NCLAT to seek the assistance of any authorised representative as it deems fit in case the matter involves intricate and substantial questions of law having wide ramifications – Rule 53 of NCLAT Rules, 2016.

4.9 Service of Notices and processes

Any notice or process to be issued by NCLT may be served by post or at the e-mail address as provided in the petition or application or in the reply.

Notice can be served by hand delivery also.

Notice to authorized representative shall be deemed to be sufficient notice – Rule 38(5) of NCLT Rules, 2016.

If notice cannot be served, NCLT will order serving notice in any other just and convenient manner. Cost of such notice can be recovered from party – Rule 38(6) of NCLT Rules, 2016.

5. Production of Evidence by Affidavit

The NCLT may direct the parties to give evidence, if any, by affidavit. Affidavit to be filed before NCLT shall be in Form No. NCLT.7 – Rule 39(3) of NCLT Rules, 2016.

5.1 Cross examination of deponent through video conferencing

Where NCLT considers it necessary in the interest of natural justice, it may order cross-examination of any deponent on the points of conflict either through information and communication technology facilities such as video conferencing or otherwise as may be decided by NCLT, on an application moved by any party – Rule 39(2) of NCLT Rules, 2016.

5.2 Production of additional evidence before NCLT which was not produced before inspector

The parties to the proceedings shall not be entitled to produce before the Bench additional evidence, either oral or documentary, which was in the possession or knowledge but was not produced before the Inspector, appointed by the Central Government for the purpose of investigating the affairs of the concerned company, during investigation under Chapter XIV of the Act.

However, if the Bench requires any additional evidence or document to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Inspector so appointed for the said purpose has not given sufficient opportunity to the party to adduce evidence, the Bench, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be produced – Rule 40(2) of NCLT Rules, 2016.

Such document may be produced or such witness examined or such evidence adduced either before the Bench or before such authority as the Bench may direct.

Additional evidence or document shall be made available by the Bench to the parties to the proceedings other than the party adducing the evidence and they shall be afforded an opportunity to rebut the contents of the said additional evidence – Rule 40(4) of NCLT Rules, 2016.

5.3 Filing of Reply and other Documents by the Respondents

Each respondent may file his reply to the petition or the application and copies of the documents, either in person or through an authorised representative, with the registry as specified by NCLT – Rule 41(1) of NCLT Rules, 2016.

A copy of the reply or the application and the copies of other documents shall be forthwith served on the applicant by the respondent.

To the reply or documents filed under rule 41(1), the respondent shall specifically admit, deny or rebut the facts stated by the applicant in his petition or application and state such additional facts as may be found necessary in his reply – Rule 41(3) of NCLT Rules, 2016.

5.4 Filing of Rejoinder

Where the respondent states such additional facts as may be necessary for the just decision of the case, the Bench may allow the petitioner to file a rejoinder to the reply filed by the respondent, with an advance copy to be served upon the respondent – Rule 42 of NCLT Rules, 2016.

5.5 NCLT can call for further information or evidence

NCLT may require the parties or any one or more of them, to produce such further documentary or other evidence as it may consider necessary – (a) for the purpose of satisfying itself as to the truth of the allegations made in the petition or application; or (b) for ascertaining any information which, in the opinion of the Bench, is necessary for the purpose of enabling it to pass orders in the petition or application – Rule 43(1) of NCLT Rules, 2016.

Additional evidence can be submitted in electronic form also.

5.6 Allegation of forgery

If any person alleges forgery or fabrication of any statutory records in matters of oppression and mismanagement, NCLT can allow sending of records to Central Forensic Science Laboratory, at cost of party alleging fabrication – Rule 43(3) of NCLT Rules, 2016.

6. Hearing of petition or applications

NCLT shall notify to the parties the date and place of hearing of the petition or application in such manner as the President or a Member may, by general or special order, direct. [This is to allow circuit benches] – Rule 44(1) of NCLT Rules, 2016.

6.1 Recusal by member

For the purpose of maintaining the high standards and integrity of NCLT, the President or a Member of NCLT shall recuse himself, if President or the Member has or had a personal, familial or professional relationship or if he had previously been called upon in another capacity, including as advisor, representative, expert or witness or for any other reason.

The President or any Member recusing himself may record reasons for recusal. However, the reason shall not be disclosed to any party – Rule 62 of NCLT Rules, 2016.

6.2 Withdrawal of application or petition

At any stage prior to the hearing of the petition or application, if the applicant desires to withdraw his petition or application, he shall make an application to that effect to NCLT.

NCLT, on hearing the applicant and if necessary, such other party arrayed as opposite parties in the petition or the application or otherwise, may permit such withdrawal upon imposing such costs as it may deem fit and proper for NCLT in the interests of the justice – Rule 44 of NCLT Rules, 2016.

6.3 Preparation and publication of daily cause list by Registry

The Registry shall prepare and publish on the notice board of the Registry before the closing of working hours on each working day the cause list for the next working day and subject to the directions of the President, listing of cases in the daily cause list shall be in the order of priority as specified in rule 89(1) of NCLT Rules, 2016 and rule 33(1) of NCLAT Rules, 2016, unless otherwise ordered by the concerned Bench.

The title of the daily cause list shall consist of the number of the appeal or petition, the day, date and time of the court sitting, court hall number and the coram indicating the names of the President. Judicial Member and Technical Member constituting the Bench.

Against the number of each case listed in the daily cause list, details as specified in rule 89(3) of NCLT Rules, 2013 and rule 33(3) of NCLAT Rules, 2016 shall be shown.

The objections and special directions, if any, of the Registry shall be briefly indicated in the daily cause list in remarks column, whenever compliance is required – Rule 89(4) of NCLT Rules, 2016 and rule 33(4) of NCLAT Rules, 2016.

The Court Master will call the cases listed in the cause list in the serial under, unless ordered by NCLT/NCLAT (as applicable) – Rule 95 of NCLT Rules, 2016 and rule 39 of NCLAT Rules, 2016

6.4 Statutes or citations for reference

The parties or legal practitioners shall, before the commencement of the proceedings for the day, furnish to the Court Master a list of law journals, reports, statutes and other citations, which may be needed for reference or photocopy of full text thereof – Rule 94 of NCLT Rules, 2016 and rule 38 of NCLAT Rules, 2016.

6.5 Carry forward of cause list and adjournment of cases on account of non-sitting of a Bench

If by reason of declaration of holiday or for any other unforeseen reason, the Bench does not function for the day, the daily cause list for that day shall, unless otherwise directed, be treated as the daily cause list for the next working day in addition to the cases already posted for that day.

When the sitting of a particular Bench is cancelled for the reason of inability of a Member of the Bench, the Registrar shall, unless otherwise directed, adjourn the cases posted before that Bench to a convenient date and the adjournment or posting or directions shall be notified on the notice board of the Registry – Rule 90 of NCLT Rules, 2016 and rule 34 of NCLAT Rules, 2016.

6.6 NCLT can call for information on affairs of company

During any proceedings before NCLT, it may for the purpose of its knowledge, call upon the Registrar of Companies to submit information on the affairs of the company on the basis of information available in the MCA 21 portal. Reasons for such directions shall be recorded in writing – Rule 45(5) of NCLT Rules, 2016.

6.7 No audio or video recording of proceedings before NCLT

There shall be no audio or video recording of the Bench proceedings by the parties or their authorised representatives – Rule 45(6) of NCLT Rules, 2016.

6.8 Oath to the witness

The Bench Officer or the Court Officer, as the case may be, shall administer the following oath to a witness [Rule 47 of NCLT Rules, 2016].

“I do swear in the name of God/solemnly affirm that what I shall state shall he the truth and nothing but the truth.”

7. Party can appear before NCLT in person or through authorized representative

Every party may appear before a Tribunal in person or through an authorised representative, duly authorised in writing in this behalf – Rule 45 of NCLT Rules, 2016.

The authorised representative shall make an appearance through the filing of Vakalatnama or Memorandum of Appearance in Form No. NCLT. 12 representing the respective parties to the proceedings.

No legal practitioner or authorised representative shall be entitled to appear and act, in any proceeding before NCLT unless he files into Tribunal vakalatnama or Memorandum of Appearance as the case may, duly executed by or on behalf of the party for whom he appears – Rule 119 of NCLT Rules, 2016.

7.1 Engaging another legal practitioner or authorized representative

A legal practitioner proposing to file a Vakalatnama or Memorandum of Appearance as the case may be, in any pending case or proceeding before NCLT in which there is already a legal practitioner or authorised representative on record, shall do so only with the written consent of the legal practitioner or the authorised representative on record.

When such consent is refused, he can appear with permission of NCLT. The NCLT shall consider application only after service of such application on the counsel already on record – Rule 120 of NCLT Rules, 2016.

7.2 An authorized representative cannot appear in matter where he had appeared or given advise to opposite party

A legal practitioner or the authorised representative, who has tendered advice in connection with the institution of any case or other proceeding before NCLT or has drawn pleadings in connection with any such matter or has during the progress of any such matter acted for a party, shall not, appear in such case or proceeding or other matter arising therefrom or in any matter connected therewith for any person whose interest is opposed to that of his former client. He can so appear only with the prior permission of NCLT – Rule 121 of NCLT Rules, 2016.

7.3 Restriction on party’s right to be heard, if he has appointed authorised representative

The party who has engaged a legal practitioner or authorised representative to appear for him before NCLT may be restricted by NCLT in making presentation before it – Rule 122 of NCLT Rules, 2016.

7.4 Empanelment of special authorised representatives, valuers or experts by the NCLT

NCLT may draw up a panel of authorised representatives or valuers or such other experts as may be required by NCLT to assist in proceedings before NCLT.

The President may call upon any of the persons from panel for assistance in the proceedings before the Bench, if so required.

The remuneration payable and other allowances and compensation admissible to such persons shall be specified in consultation with NCLT – Rule 123 of NCLT Rules, 2016.

7.5 Professional dress for the authorised representatives

The authorised representatives shall wear the same professional dress as prescribed in their Code of Conduct, while appearing before NCLT – Rule 124 of NCLT Rules, 2016.

7.6 Appearance on behalf of Central Government, RD or ROC

The Central Government, the Regional Director or the Registrar of Companies or Official Liquidator may authorise an officer or an Advocate to represent in the proceedings before NCLT.

The officer authorised by the Central Government or the Regional Director or the Registrar of Companies or the Official Liquidator shall be an officer not below the rank of Junior Time Scale or company prosecutor – Rule 45(4) of NCLT Rules, 2016.

7.7 Registration of authorised representative’s interns

Any intern employed by an authorised representative can act as such before NCLT or be permitted to have access to the records and obtain copies of the orders of a Bench of NCLT in which the authorised representative ordinarily appears, only if his name is entered in the register of interns maintained by the Bench – Rule 46(1) of NCLT Rules, 2016.

An authorised representative desirous of registering his intern shall make a petition or an application to the Registrar in Form NCLT 10 and on such application being allowed by the Registrar, his name shall be entered in the register of interns.

7.8 Amicus Curiae

NCLT Tribunal may permit any person or persons, including the professionals and professional bodies to render or to communicate views to NCLT as amicus curiae on any point or points or legal issues as the case may be as assigned to such amicus curiae.

NCLT may permit amicus curiae to have access to the pleading the parties and NCLT shall enable the parties to submit timely observations on brief provided by the amicus curiae.

NCLT shall be at liberty to direct either of the parties or both the parties to the proceedings involving a point on which the opinion of the amicus curiae has been sought, to bear such expenses or fee as may be ordered by NCLT.

The judgment and any appended opinions shall be transmitted to the parties and to amicus curiae – Rule 61 of NCLT Rules, 2016.

8. Consequence of non-appearance of applicant or respondent

If, on the date fixed for hearing of the petition or application or on any other date to which such hearing may be adjourned, the applicant does not appear when the petition or the application is called for hearing, the NCLT may, in its discretion, either dismiss the application for default or hear and decide it on merit – Rule 48(1) of NCLT Rules, 2016.

There is similar provision in rule 20 of CESTAT Rules.

This rule i.e. rule 20 of CESTAT Rules was held invalid as against section 35C of Central Excise Act in Balaji Steel Re-Rolling Mills v. CCE (2014) 52 taxmann.com 107 = 49 GST 1 = 310 ELT 209 (SC 3 member bench). It was held that Tribunal can confirm, modify or annul the decision or remand the matter but cannot dismiss appeal for non-prosecution of appeal – followed in Super Label v. UOI (2015) 51 GST 763 = 59 taxmann.com 460 (Bom HC DB) * Afloat Textiles v. UOI (2015) 325 ELT 719 (Bom HC DB).

Earlier, Income Tax Tribunal Rules (rule No. 24) also specified that appeal can be dismissed for non-appearance of appellant. This provision has been struck down in CIT v. S Chennippa Mudaliar – AIR 1969 SC 1068 = (1969) 1 SCC 591 = 74 ITR 41 (SC). It was held that Tribunal cannot dismiss appeal for non-appearance. It has to give decision.

In Viral Laminates P Ltd. v. UOI 1998(100) ELT 335 (Guj HC DB), holding that Tribunal can pass ex parte order, but cannot dismiss the appeal. – same view in Prakash Fabricators v. UOI 2001(130) ELT 433 (Del HC DB) * Balar Fabrics v. UOI 2002(142) ELT 309 (Raj HC DB) * Rajendra Prasad Borah v. ITAT (2008) 174 Taxman 568 (Gau HC).

In Chemipol v. UOI (2009) 244 ELT 497 (Bom HC DB), appeal was dismissed as appellant failed to appear on just one occasion. Restoration application was dismissed by Tribunal. It was held that Tribunal can dismiss appeal/proceeding for non-prosecution unless statute clearly requires hearing and decision on merits. Tribunal must decide appeal on merits if appellant files written submissions. Tribunal is not empowered to dismiss appeal in such case. Appeal can be dismissed if appellant persistently remains absent without notice and Tribunal is of the view that appellant is not interested in prosecuting appeal. It was held that though rule 20 has been held unconstitutional by Delhi High Court, every Court and Tribunal has inherent powers to dismiss appeal for non-prosecution [Tribunal was asked to restore the appeal].

If respondent is absent, order can be passed ex parte, after giving reasonable opportunity of hearing.

8.1 Ex-parte Hearing and disposal if respondent does not appear

If, on the date fixed for hearing the petition or application or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the petition or the application is called for hearing, the NCLT may adjourn the hearing or hear and decide the petition or the application ex-parte – Rule 49(1) of NCLT Rules, 2016.

Similar provision has been made in Rule 37(2) of NCLT Rules, 2016, with slightly different wordings.

There is parallel provision in rule 53 of NCLAT Rules, 2016. In that case, it is specifically provided that NCLAT can take assistance of any authorized representative if the matter involves intricate and substantial questions of law having wide ramifications.

8.2 Restoration if order was passed ex parte

If a petition or an application has been heard ex-parte against a respondent or respondents, such respondent or respondents may apply to NCLT for an order to set it aside.

If such respondent or respondents satisfies NCLT that the notice was not duly served, or that he or they were prevented by any sufficient cause from appearing (when the petition or the application was called) for hearing, NCLT may make an order setting aside the ex-parte hearing as against him or them upon such terms as it thinks fit.

However, if the ex-parte hearing of the petition or application is of such nature that it cannot be set aside as against one respondent only, it may be set aside as against all or any of the other respondents also – Rule 49(2) of NCLT Rules, 2016.

Restoration of dismissed application – If the petition or application has been dismissed for default, applicant can file application within thirty days from the date of dismissal for restoration, giving sufficient cause for his non-appearance. NCLT can restore application or petition – Rule 48(2) of NCLT Rules, 2016.

However, if the case was disposed of on merits the decision shall not be re-opened.

8.3 Summoning of witnesses and recording Evidence

If a petition or an application is presented by any party to the proceedings for summoning of witnesses, NCLT shall issue summons for the appearance of such witnesses unless it considers that their appearance is not necessary for the just decision of the case.

If summons are issued by NCLT to any witness to give evidence or to produce any document, the person so summoned shall be entitled to such travelling and daily allowance sufficient to defray the travelling and other expenses as may be determined by the Registrar which shall be deposited by the party as decided by the Registrar.

8.4 Substitution of legal representatives if party dies or becomes insolvent

If a party to a proceeding pending before a Bench dies or is adjudged insolvent or, in the case of a company, being wound up, the proceeding shall not abate and may be continued by or against the executor, administrator or other legal representative of the parties or by or against the assignee, receiver or liquidator, as the case may be.

Normally, if appellant dies, the appeal abates – Hari Prasad Chhapolia v. UOI (2008) 227 ELT 345 (SC) [This would be so if only rights of appellant are involved].

8.5 Legal representatives can apply for substitution

In the case of death of a party during the pendency of the proceedings before NCLT, the legal representative of the deceased party may apply within ninety days of the date of such death for being brought on record.

If no petition or application is received from the legal representatives within the period specified, the proceedings shall abate. However, NCLT can allow such substitution even after 90 days – Rule 53(3) of NCLT Rules, 2016.

8.6 Assessors or valuers can be appointed by NCLT

In any enquiry into a claim, NCLT may call in the aid of assessor or valuer, not exceeding two in number, who possess any technical or special knowledge with respect to any matter before NCLT for the purpose of assisting NCLT.

An assessor or valuer shall perform such functions as NCLT may direct.

The remuneration, if any, to be paid to an assessor or valuer shall in every case be determined by NCLT and be paid by it in the manner as may be specified by NCLT – Rule 54 of NCLT Rules, 2016.

8.7 Pleadings before NCLT after reply only with permission of NCLT

No pleadings, subsequent to the reply, shall be presented except by the leave of NCLT upon such terms as NCLT may think fit – Rule 55 of NCLT Rules, 2016.

8.8 Application for execution of order passed by NCLT

For execution of order passed by NCLT, the holder of an order shall make an application to NCLT in Form NCLT.8- Rule 56 of NCLT Rules, 2016.

On receipt of an application under rule 56 NCLT shall issue a process for execution of its order in such Form as provided in the Code of Civil Procedure, 1908. NCLT can consider objections of respondent – Rule 57 of NCLT Rules, 2016.

8.9 Effect of non-compliance of procedural rule does not vitiate proceedings

Failure to comply with any requirement of these rules shall not invalidate any proceeding, merely by reason of such failure, unless NCLT is of the view that such failure has resulted in miscarriage of justice – Rule 58 of NCLT Rules, 2016.

8.10 Procedure for imposition of penalty under the Act

Penalty can be imposed only on issue of show cause notice and giving opportunity of personal hearing, as specified in Rule 59 of NCLT Rules, 2016.

8.11 Procedure for signing of Orders by NCLT

Once the final text of the judgment has been approved and adopted, the judgment shall be signed and dated by the President or the concerned Members or Member and the Registrar, and shall contain the names of the Members who have taken part in the decision.

Any Member differing as to the grounds upon which the judgment was based or some of its conclusions, or dissenting from the judgment, may append a separate or dissenting opinion – Rule 60(2) of NCLT Rules, 2016.

Reference to third member – In case the members who have heard the case are equally divided in passing the order or judgment, then the President shall constitute a Bench as per section 419(5) of Companies Act, 2013 – Rule 60 of NCLT Rules, 2016.

8.12 Registry to send certified copy of order free of cost

The Registry’ shall send a certified copy of final order passed to the parties concerned free of cost and the certified copies may be made available with cost as per Schedule of fees, in all other cases – Rule 50 of NCLT Rules, 2016.

8.13 Filing of Order of NCLT with the Registrar of Companies

The certified copy of the order passed by NCLT shall be filed by the company in Form INC-28 along with fee of Rupees five hundred with the Registrar of Companies within the time specified in the Act or specified by NCLT. Where no time limit is prescribed by NCLT, such order shall be filed within thirty days from the date of receipt of certified copy of the order – Rule 161 of NCLT Rules, 2016.

There is no parallel provision in NCLAT Rules, 2016.

9. Reference or complaint to NCLT in Form NCLT 9

Following sections make provision for reference or complaint to NCLT –

• • By the Registrar of Companies under section 441 of Companies Act, 2013.
  • By the Central Government under proviso to sections 140(5), 221, section 224(2), section 224(5) or section (2) of section 241(2) of Companies Act, 2013.
  • Reference section 75(2) of Companies Act, 2013.
  • Complaint by any person under section 222(1) of Companies Act, 2013.
  • Reference by a company under section 22A(4)(c) of the Securities Contracts (Regulations) Act, 1956.

Reference or complaint in form NCLT.9 -The reference or complaint shall be made by way of a petition or application in Form No. NCLT- 9. It shall be accompanied by documents mentioned in Annexure B of NCLT Rules- – Rule 88 of NCLT Rules, 2016.

10. Inspection of records by parties

The parties to any case or their authorised representative may be allowed to inspect the record of the case by making an application in writing to the Registrar and by paying the fee prescribed – Rule 114(1) of NCLT Rules, 2016 and rule 57(1) of NCLAT Rules, 2016.

Person who is not a party to the proceeding, may also be allowed to inspect the proceedings after obtaining the permission of the Registrar in writing, subject to such terms and conditions as may be directed by the President by a general or special order – Rule 114(2) of NCLT Rules, 2016 and rule 57(2) of NCLAT Rules, 2016.

Inspection of records of a pending or decided case before NCLT or NCLAT shall be allowed only on the order of the Registrar – Rule 115 of NCLT Rules, 2016 and rule 58 of NCLAT Rules, 2016.

Application for inspection of records to Registrar – Application for inspection of record shall be presented at Registry between 10.30 AM and 3.00 PM on any working day and two days before the date on which inspection is sought, unless otherwise permitted by the Registrar.

In case of NCLT, no form of application has been prescribed. In case of NCLAT, the application should be in form NCLAT.3 – Rule 59(1) of NCLAT Rules, 2016.

The Registry shall submit the application with its remarks before the Registrar, who shall, on consideration of the same, pass appropriate orders.

Inspection of records of a pending case shall not ordinarily be permitted on the date fixed for hearing of the case or on the preceding day – Rule 116 of NCLT Rules, 2016.

10.1 Mode of inspection of records

The Deputy Registrar shall arrange to procure the records of the case and allow inspection of such records on the date and time fixed by the Registrar between 10.30 AM and 12.30 PM and between 2.30 PM and 4.30 PM in the immediate presence of an officer authorised in that behalf by the Registrar – Rule 117(1) of NCLT Rules, 2016 and rule 61(1) of NCLAT Rules, 2016.

The person inspecting the records shall not in any manner cause dislocation, mutilation, tampering or damage to the records in the course of inspection.

Notes only by pencil – no copies – The person inspecting the records shall not make any marking on any record or paper so inspected and taking notes, if any, of the documents or records inspected may be done only in pencil – Rule 117(3) of NCLT Rules, 2016 and rule 61(3) of NCLAT Rules, 2016.

The person supervising the inspection, may at any time prohibit further inspection, if in his opinion, any of the records are likely to be damaged in the process of inspection or the person inspecting the records has violated or attempted to violate the provisions of these rules and shall immediately make a report about the matter to the Registrar and seek further orders from the Registrar and such notes shall be made in the Inspection Register.

10.2 Maintenance of register of inspection

The Deputy Registrar shall cause to maintain a Register for the purpose of inspection of documents or records and shall obtain therein the signature of the person making such inspection on the Register as well as on the application on the conclusion of inspection – Rule 118 of NCLT Rules, 2016 and rule 62 of NCLAT Rules, 2016.

11. Affidavits

Every affidavit shall be titled as ‘Before the National Company Law Tribunal’ or ‘Before the National Company Law Appellate Tribunal’ (as applicable). It shall be followed by the cause title of the appeal or application or other proceeding in which the affidavit is sought to be used – Rule 125 of NCLT Rules, 2016 and rule 67 of NCLAT Rules, 2016.

The affidavit shall conform to the requirements of order XIX, rule 3 of Civil Procedure Code, 1908 – Rule 126 of NCLT Rules, 2016 and rule of NCLAT Rules, 2016.

In case of NCLAT, affidavit shall be in form NCLAT.4 and shall conform to the requirements of order XIX, rule 3 of Civil Procedure Code, 1908 – Rule 68 of NCLAT Rules, 2016.

Affidavits shall be sworn or affirmed before an advocate or notary, who shall affix his official seal – Rule 127 of NCLT Rules, 2016 and rule 69 of NCLAT Rules, 2016.

Affidavits of illiterate, visually challenged persons – Where an affidavit is sworn or affirmed by any person who appears to be illiterate, visually challenged or unacquainted with the language in which the affidavit is written, the attester shall certify that the affidavit was read, explained or translated by him or in his presence to the deponent and that he seemed to understand it, and made his signature or mark in the presence of the attester in form NCLT 14. In case of NCLAT, the affidavit shall be in form NCLAT.5 – Rule 128 of NCLT Rules, 2016 and rule 70 of NCLAT Rules, 2016.

Identification of deponent if attester does not know deponent – If the deponent is not known to the attester, his identity shall be testified by a person known to him and the person identifying shall affix his signature in token thereof – Rule 129 of NCLT Rules, 2016 and rule 71 of NCLAT Rules, 2016.

Annexures to the affidavit shall also be attested by attester with endorsement – Document accompanying an affidavit shall be referred to therein as Annexure number and the attester shall make the endorsement thereon that this is the document marked putting the Annexure number in the affidavit. The attester shall sign therein and shall mention the name and his designation – Rule 130 of NCLT Rules, 2016 and rule 72 of NCLAT Rules, 2016.

11.1 Where affidavit can be sworn in winding up

Any affidavit required for purposes of liquidation can be sworn in India or abroad before any Court, NCLT, Judge or person lawfully authorised to take and receive affidavits. In case of other country, affidavit can also be sworn before Indian Diplomatic or consular officer – section 355(1) of Companies Act, 2013 [section 558(1) of 2013 Act].

All Courts, Tribunals, Commissioners and Judges in India shall take judicial notice of such affidavit sworn before authorised persons – section 355(2) of Companies Act, 2013 [section 558(2) of 2013 Act].

Thus, the affidavit is required to be admitted as evidence.

12. Discovery, production and return of documents

Except otherwise provided otherwise, discovery or production and return of documents shall be regulated by the provisions of the Code of Civil Procedure, 1908 – Rule 131(1) of NCLT Rules, 2016 and rule 73(1) of NCLAT Rules, 2016.

Application for summons to produce documents – An application for summons to produce documents shall be on plain paper setting out the document the production of which is sought, the relevancy of the document and in case where the production of a certified copy would serve the purpose, whether application was made to the proper officer and the result thereof – Rule 131(2) of NCLT Rules, 2016 and rule 73(2) of NCLAT Rules, 2016.

A summons for production of documents in the custody of a public officer other than a court shall be in Form NCLT-15 [In case of NCLAT, no specific form has been prescribed]. The application shall be addressed to the concerned Head of the Department or such other authority as may be specified by NCLT – Rule 131(2) of NCLT Rules and Rule 73(6) of NCLAT Rules, 2016.

Suo motu summoning of documents – Notwithstanding anything contained in these rules, NCLT may, suo motu, issue summons for production of public document or other documents in the custody of a public officer – Rule 132 of NCLT Rules, 2016

In case of NCLAT, may, suo motu, issue summons for production of public document or other documents in the custody of a public officer in Form NCLAT-6. – Rule 74 of NCLAT Rules, 2016.

Marking of documents received after issue of summons – The documents when produced shall be marked as follows – (a) If relied upon by the appellant’s or petitioner’s side, they shall be numbered as ‘A’ series (b) If relied upon by the respondent’s side, they shall be marked as ‘B’ series (c) NCLT exhibits shall be marked as ‘C’ series – Rule 133(1) of NCLT Rules, 2016 and rule 75 of NCLAT Rules, 2016.

Costs for transmission of records to applicant – NCLT may direct the applicant to deposit with NCLT by way of Demand Draft or Indian Postal Order drawn in favour of the Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi, a sum sufficient to defray the expenses for transmission of the records before the summons is issued – Rule 133(2) of NCLT Rules, 2016.

Return and transmission of documents – An application for return of the documents produced shall be numbered. Such application shall be entertained after the destruction of the records [really, it should be ‘shall not be entertained’. If records are destroyed, how these can be returned?]

NCLT or NCLAT (as applicable) may, at any time, direct return of documents produced subject to such conditions as it deems fit – Rule 134 of NCLT Rules, 2016 and Rule 76 of NCLAT Rules, 2016.

13. Examination of witnesses and issue of commissions

Section 300 of Companies Act, 2013 make specific provisions relating to examination of persons in case of fraud during winding up proceedings.

Even in other cases, it may become necessary to examine witnesses.

The provisions of the Orders XVI and XXVI of the Code of Civil Procedure, 1908, shall mutatis mutandis apply in the matter of summoning and enforcing attendance of any person and examining him on oath and issuing commission for the examination of witnesses or for production of documents – Rule 135 of NCLT Rules, 2016 and rule 77 of NCLAT Rules, 2016.

Examination in camera – NCLT or NCLAT (as applicable) may in its discretion examine any witness in camera – Rule 136 of NCLT Rules, 2016 and rule 77 of NCLAT Rules, 2016.

Form of oath or affirmation to witness– Oath shall be administered to a witness in the following form: –I do swear in the name of God/solemnly affirm that what I shall state shall be truth, the whole truth and nothing ‘but the truth’. – Rule 137 of NCLT Rules, 2016 and rule 78 of NCLAT Rules, 2016.

Form of oath or affirmation to interpreter – Oath or solemn affirmation shall be administered to the interpreter in the following form before the Bench Officer or the Court Officer as the case may be, as taken for examining a witness: – “I do swear in the name of God/solemnly affirm that I will faithfully and truly interpret and explain all questions put to and evidence given by witness and translate correctly and accurately all documents given to me for translation.” – Rule 138 of NCLT Rules, 2016 and rule 80 of NCLAT Rules, 2016.

Officer to administer oath – The oath or affirmation shall be administered by the Court Master. In case of NCLAT, the oath can be administered by Court Master of Branch Officer – Rule 139 of NCLT Rules, 2016 and rule 81 of NCLAT Rules, 2016 [The words ‘branch officer’ in case of NCLAT seems to be a mistake]

13.1 Recording of deposition

The Deposition of a witness shall be recorded in form NCLT.16 in case of NCLT and in form NCLAT.7 in case of NCLAT. Each page of the deposition shall be initialed by the Members constituting the Bench.

Corrections, if any, pointed out by the witness may, if the Bench is satisfied, be carried out and duly initialled. If not satisfied, a note to the effect be appended at the bottom of the deposition – Rule 140 of NCLT Rules, 2016 and rule 82 of NCLAT Rules, 2016.

13.2 Numbering of witnesses

The witnesses called by the applicant or petitioner shall be numbered consecutively as PWs and those by the respondents as RWs – Rule 141 of NCLT Rules, 2016 and rule 85 of NCLAT Rules, 2016.

13.3 Grant of discharge certificate to witness

Witness discharged by NCLT may be granted a certificate in form NCLT-17 in case of NCLT and form NCLAT.8 in case of NCLAT. The discharge will be granted by the Registrar – Rule 142 of NCLT Rules, 2016 and rule 84 of NCLAT Rules, 2016.

13.4 Allowance payable to witness for attending examination and cross examination

Where NCLT or NCLAT (as applicable) issues summons to a Government servant to give evidence or to produce documents, the person so summoned may draw from the Government travelling and daily allowances admissible to him as per rules.

Where there is no provision for payment of Travelling Allowances and Daily Allowance by the employer to the person summoned to give evidence or to produce documents, he shall be entitled to be paid as allowance, (a sum in the opinion of the Registrar sufficient to defray the travelling and other expenses), having regard to the status and position of the witness – Rule 143(2) of NCLT Rules, 2016 and rule 85(2) of NCLAT Rules, 2016.

Party applying for summons to deposit amount for witness allowance – The party applying for the summons shall deposit with the Registrar the amount of allowance as estimated by the Registrar well before the summons is issued.

If the witness is summoned as a court witness, the amount estimated by the Registrar shall be paid as per the directions of NCLT.

The aforesaid provisions would govern the payment of batta (travel allowance for attending) to the interpreter also – Rule 143(5) of NCLT Rules, 2016 and rule 85(5) of NCLAT Rules, 2016.

13.5 Records to be furnished to the Commissioner who is recording examination of witness

The Commissioner shall be furnished by NCLT or NCLAT (as applicable) with such of the records of the case as NCLT considers necessary for executing the Commission.

Original documents shall be furnished only if a copy does not serve the purpose or cannot be obtained without unreasonable expense or delay and delivery and return of records shall be made under proper acknowledgement – Rule 144 of NCLT Rules, 2016 and rule 86 of NCLAT Rules, 2016.

Taking of specimen handwriting, signature etc. by Commissioner – The Commissioner may, if necessary, take specimen of the handwriting, signature or fingerprint of any witness examined before him – Rule 145 of NCLT Rules, 2016 and rule 87 of NCLAT Rules, 2016.

14. Disposal of cases and pronouncement of orders

NCLT will pass order and NCLAT shall deliver judgments after hearing parties – rule 146 of NCLT Rules and rule 88 of NCLAT Rules.

NCLT can summarily dismiss appeal on sufficient grounds – rule 146 of NCLT Rules,

There is no such provision in NCLAT Rules.

The final decision of NCLAT on an appeal or proceedings before NCLAT shall be delivered by way of Judgment – Rule 88 of NCLAT Rules, 2016.

All orders or directions of the Bench shall be stated in clear and precise terms in the last paragraph of the order – Rule 147 of NCLT Rules and Rule 89 of NCLAT Rules, 2016.

Corrections of orders by NCLT/NCLAT bench – The Member of the Bench who has prepared the order shall initial all corrections and affix his initials at the bottom of each page – Rule 148 of NCLT Rules and Rule 90 of NCLAT Rules, 2016.

14.1 Pronouncement of order by NCLT/NCLAT

NCLT shall make pronounce order at once after conclusion of hearing or at the most in 30 days from final hearing – rule 150(1) of NCLT Rules, 2016.

NCLAT shall as far as possible pronounce the order immediately after the hearing is concluded. When the orders are reserved, the date for pronouncement of order shall be notified in the cause list which shall be a valid notice of intimation of pronouncement. Reading of the operative portion of the order in the open court shall be deemed to be pronouncement of the order – Rule 91 of NCLAT Rules, 2016.

Requirements of order of Tribunal – (a) The order must decide on all the points raised by parties (b) A point not raised in appeal cannot be decided (c) Validity of an order can be adjudged on the grounds mentioned in the order and not on other grounds (d) The order should be speaking i.e. with reasons and in writing.

14.2 Pronouncement of order by any one member of the Bench

Any Member of NCLT/NCLAT may pronounce the order for and on behalf of the Bench.

When an order is pronounced under this rule, the Court Master shall make a note in the order sheet, that the order of the Bench consisting of Chairperson and Members was pronounced in open court on behalf of the Bench-Rule 131 of NCLAT Rules and Rule 92 of NCLAT Rules, 2016.

14.3 Authorizing any Member to pronounce order

If the Members of the Bench who heard the case are not readily available or have ceased to be Members of NCLAT/NCLAT, the President of NCLT/Chairperson of NCLAT (as applicable) may authorise any other Member to pronounce the order on his behalf after being satisfied that the order has been duly prepared and signed by all the Members who heard the case and the order pronounced by the Member so authorised shall be deemed to be duly pronounced.

The Member so authorised for pronouncement of the Order shall affix his signature in the Order sheet of the case stating that he has pronounced the order as provided in this rule.

If the Order cannot be signed by reason of death, retirement or resignation or for any other reason by any one of the Members of NCLAT who heard the case, it shall be deemed to have been released from part-heard and listed afresh for hearing – Rule 152 of NCLT Rules and Rule 93 of NCLAT Rules, 2016.

14.4 Oral order dictated in Court final

When a judgment is pronounced in open court, parties act on the basis that it is the judgment and that signing is a formality to follow. Oral order dictated in open Court is final, in the absence of exceptional circumstances – Vinod Kumar Singh v. Banaras Hindu University – AIR 1988 SC 371. * Surendra Singh v. State of UP – AIR 1954 SC 194.

Once Tribunal announces in open Court ‘Appeal Allowed’, the order cannot be reopened by Tribunal later – CCE v. C.P. Aqua Culture (2013) 290 ELT 202 (Mad HC EB).

14.5 Order of CESTAT should be complete with reasons

Sometimes, Tribunals announce operating part of the order first and reasons are given later. This practice has been highly depreciated by Supreme Court in case of High Courts. Hence, Delhi High Court in Megha Exports v. CEGAT – 1994 (72) ELT 241 (Del HC), has stated that it will appreciate if entire order – operative portion as well as reasons is passed instead of passing two separate orders.

In State of Punjab v. Jagdev Singh Talwandi (1984) 1 SCC 596 = AIR 1984 SC 444 (Constitution Bench) also, practice of giving final order by High Court without giving reasons at the time of passing order was depreciated, as this puts Supreme Court in a predicament when appeal is filed – quoted in Zahira Habibulla H Sheikh v. State of Gujarat 2004 AIR SCW 2325.

Every quasi judicial order must be supported by reason. Order must be a speaking order – Kishan Lal v. UOI 1998 AIR SCW 615 = 97 Taxman 556 (SC) * Rajesh Kumar v. Dy CIT (2007) 2 SCC 181 = 157 Taxman 168 = 287 ITR 91 (SC) * State of Himachal Pradesh v. Paras Ram AIR 2008 SC * Kranti Associates v. Masood Ahmed Khan (2010) 9 SCC 496 = 273 ELT 345 (SC) * Ravi Yashwant Bhoir v. District Collector (2012) 4 SCC 407 * Manohar v. State of Maharashtra (2013) 120 SCL 179 = 35 taxmann.com 67 (SC).

Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless – Ram Phal v. State of Haryana (2009) 3 SCC 258 – same view in State of Uttaranchal v. Sunil Kumar Singh AIR 2008 SC 2026 * Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity (2010) 3 SCC 732 = AIR 2010 SC 1285 (SC 3 member bench) * UP State Road Transport Corpn v. Suresh Chand Sharma (2010) 6 SCC 555 = 2010 LLR 760 (SC).

The order should be speaking i.e. with reasons and in writing. In CIT v. Walchand & Co. P Ltd. – (1967) 65 ITR 381 (SC), it was held that Tribunal should give decisions with reasons – same view in CCE v. Chandubhau Shiroya (2009) 234 ELT 24 (Guj HC DB) * CCE v. Vishesh Dhatu Industries (2008) 222 ELT 337 (Bom HC DB) * UOI v. Real Slotted Angles Company (2010) 252 ELT 329 (Bom HC DB). * CCE v. Mahindra and Mahindra (2010) 252 ELT 330 (Bom HC DB) * CC v. Essar Oil (2010) 256 ELT 204 (Guj HC DB) * CCE v. Chandubhau Shiroya (2010) 27 STT 422 (Guj HC DB) * CC v. Wartsila India Ltd. (2010) 254 ELT 406 (Bom HC DB) * Shapoorji Pallonji v. CCE (2011) 263 ELT 206 (Bom HC DB) * CCE v. JSW Steel Ltd. (2014) 47 GST 29 = 47 taxmann.com 403 (Bom HC DB) * Areva T&D India v. CESTAT (2014) 306 ELT 444 (Mad HC DB).

Order should not be mere reproduction of submissions. Mere reliance on earlier decision is not sufficient – Anil Products v. CCE (2010) 257 ELT 523 (Guj HC DB).

Order of appellate authority should be with reasons, to indicate application of mind. Affected party should know why decision went against him – Steel Authority of India v. Sales Tax Officer (2008) 15 STT 449 = 16 VST 181 (SC).

High Court should give at least brief reasons while deciding whether question of law is involved – Chandna Impex v. CC (2011) 269 ELT 433 (SC).

In Vasudeo Vishwanath Saraf  v. New Education Institute AIR 1986 SC 2105, it was observed, ‘It is not necessary that order must be a lengthy one recording all the reasons that played in mind of the Court in coming to the decision. What is required is that the order must in a nutshell record the relevant reason which were taken into consideration in coming to the decision. – quoted in Gopal Mills v. CCE 2002(146) ELT 212 (CEGAT).

Reasons need not be repeated if it agrees with reasons of lower authorities – Appellate or revisional authority need not give separate reasons if it agrees with the reasons contained in the order under challenge. – S N Mukherjee v. UOI – (1990) 4 SCC 594 = AIR 1990 SC 1984 (Constitution Bench) – followed in Popular Engg v. ITAT (2001) 119 Taxman 51 (P&H HC DB) – same view in CIT v. K Y Pilliah (1967) 63 ITR 411 (SC).

14.6 Proceedings recorded by Tribunal/Court are conclusive and cannot be challenged in other forum

Proceedings recorded by Tribunal/court cannot be challenged in another forum, unless steps are taken before the same forum – Bhagwati Prasad v. DSMDC AIR 1990 SC 371 – quoted in Deeksha Suri v. ITAT 1998(102) ELT 524 = 100 Taxman 573 (Del HC DB). – same view in State of Maharashtra  v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 = 1982(2) SCC 463 – quoted with approval in D P Chadha v. Triyugi Narain Mishra (2002) 38 SCL 699 (SC 3 member bench) – same view in Metroark Ltd. v. CCE 2004 AIR SCW 2304 = 164 ELT 225 (SC) * CC v. Bureau Veritas AIR 2005 SC 1292 = 181 ELT 3 (SC 3 member bench).

In India Cement Ltd. v. CCE (2015) 326 ELT 511 (Mad HC DB), Tribunal recorded that assessee has not pressed point on merit. Assessee contended that no such concession was given at the time of hearing. It was stated that assessee should move the Tribunal itself for modification of order if there is an error of fact. Factual aspects cannot be challenged before High Court.

In Central Bank of India v. Vrajlal Kapurchand Gandhi 2003 AIR SCW 3485 = AIR 2003 SC 3028, it was held that statement of facts as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts and no one can contradict such statements by affidavit or other evidence. The party should call attention of the very judges who have made the record. It cannot be disputed in appeal. Appellate Authority (Supreme Court in this case) cannot enter into enquiry as to what transpired at the time of hearing. It is simply not done. – same view in Guruvayur Devaswom Managing Committee v. C K Rajan 2003 AIR SCW 6039 (SC 3 member bench) * Roop Kumar v. Mohan Thedani 2003 AIR SCW 2425 = AIR 2003 SC 2418 – also in State of Maharashtra v. Ramdas Shrinivas Nayak AIR 1982 SC 1249 = 1982(2) SCC 463 – quoted and followed/same view in Commissioner.

15. Rectification of Order by NCLT

Any clerical or arithmetical mistakes in any order of NCLT or error therein arising from any accidental slip or omission may, at any time, be corrected by NCLT on its own motion or on application of any party by way of rectification.

An application for rectification of order may be made in form No. NCLT. 9 within two years from the date of the final order for rectification of the final order not being an interlocutory order – Rule 154(2) of NCLT Rules, 2016.

There is no parallel provision in NCLAT Rules, 2016. However, these powers are indeed inherent powers of any Tribunal.

General power of NCLT to amend its order – NCLT may, within a period of thirty-days from the date of completion of pleadings, and on such terms as to costs or otherwise, as it may think fit, amend any defect or error in any proceeding before it; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding – Rule 155 of NCLT Rules, 2016.

There is no parallel provision in NCLAT Rules, 2016. However, these powers are indeed inherent powers of any Tribunal.

16. NCLT and NCLAT can award cost and even exemplary cost on defaulting party

NCLT and NCLAT can award costs for meeting legal expenses of the respondent of defaulting party. NCLT can direct appellant or respondent to bear cost of litigation of the other side. In case of abuse of process of Court, NCLT and NCLAT can impose exemplary costs on defaulting party – Rule 113 of NCLT Rules, 2016 and rule 56 of NCLAT Rules, 2016

This has been held as inherent powers of Tribunal.

Quasi judicial authorities have inherent powers to dismiss a case on the ground of abuse of the process – New India Assurance Co Ltd. v. K Srinivasan 2000(3) SCC 242.

17. Forms in respect of NCLT

Following forms have been prescribed in respect of procedures before NCLT.

Form No.	Details	Relevant Rule/s
NCLT.1	From of application/reply/rejoinder/inter-	34 to 87
	locutory application
NCLT.2	Interlocutory application	34
NCLT.3	Notice of motion for interlocutory application	34
NCLT.3A	Advertisement detailing petition	35
NCLT.3B	Individual notice of petition/application to creditors, members etc.	68
NCLT.4	General heading for proceedings	34
NCLT.5	Notice to opposite party to be issued by NCLT	34 and 37
NCLT.6	Form of affidavit	34
NCLT.7	Affidavit by way of evidence	39
NCLT.8	Application  for  execution  of  order under section 424(3) with reference to decree	56
NCLT.9	General  form  for  all  purposes  if specific form is not prescribed	72 to 154
NCLT.10	Application for registration of an intern of authorised representative	46
NCLT.11	Application for repayment of deposit or debentures	73
NCLT.12	Memorandum of Appearance by practising CS/CA/CMA	45
NCLT.13	Public notice of petition under section 245 of Companies Act, 2013	87
NCLT.14	Certificate when deponent is blind or illiterate or unacquainted language	128
NCLT.15	Application for order for production of documents	131
NCLT.16	Form of recording deposition of witness	140
NCLT.17	Certificate of discharge of Court witness	142
NCLT.18	Record of appeals filed before NCLAT against order of NCLT	163