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FORUMS FOR RESOLVING CORPORATE DISPUTES

Author: Spandana V Sudheer, III year of B.B.A.,LL.B.(Hons.) from UPES (University of Petroleum And Energy Studies)

Co-author: Niranjan S Nair, IV year of B.B.A.,LL.B.(Hons.) from UPES (University of Petroleum And Energy Studies)


Introduction

Summary of The Article: This article is consists of full-fledged information regarding National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal. The article consists of the Meaning, constitution, Branches, qualifications for NCLT & NCLAT, removal from NCLT & NCLAT, powers and functions of NCLT &NCLAT.


Purpose of The Article: The purpose behind writing this article is to a brief article that contains the information regarding NCLT & NCLAT to have a broader understanding regarding the selected topic for the article.


The national company law tribunal (NCLT) was brought into effect in June 2016 under section 408 of the companies act, 2013, by the central government. The ministry of corporate affairs established the first phase of NCLT with eleven benches, including a principal bench in new Delhi and ten other benches in various cities across India[1].The NCLT is overseen by the president chief justice (retd.) Ramalingam Sudhakar and comprises nine technical members and sixteen judicial members spread across different locations. Additional benches and members have been added in Cuttack, Jaipur, Cochin, Amravati, and Indore. The NCLT was established in response to financial crimes and to protect public interests, replacing the corporate law board. The main objective of NCLT and NCLAT is to expedite the resolution of company insolvency and bankruptcy issues and administer bankruptcy legislation to reduce the workload of courts.[2]


The National Company Law Appellate Tribunal (NCLAT) was established on June 1st, 2016, under Section 410 of the Companies Act, 2013, to hear appeals against the decisions made by the National Company Law Tribunal.[3] On December 1st, 2016, NCLAT was also designated as the Appellate Tribunal for appeals against the decisions made by NCLT under Section 61 of the Insolvency and Bankruptcy Act, 2016 (IBC). Appeals against decisions made by the Insolvency and Bankruptcy Board of India under Sections 202 and 211 of the IBC are also heard by NCLAT. [4]Furthermore, following an amendment to Section 410 of the Companies Act, 2013, by Section 172 of the Finance Act, 2017, on May 26th, 2017, NCLAT became the Appellate Tribunal for hearing and deciding appeals against any direction, decision, or order passed by the Competition Commission of India (CCI).[5]Lastly, with the change made to Section 410(a) of the Companies Act, 2013, by Section 83 of the Companies Amendment Act, 2017, on May 7th, 2018, NCLAT was designated as the Appellate Tribunal for appeals against the orders of the National Financial Reporting Authority.[6][7]


A President and as many additional judicial and technical members as may be required make up the National Company Law Tribunal's membership. After consulting with the Chief Justice of India, the Central Government shall appoint the Tribunal's president. The Central Government will appoint the Members based on a Selection Committee's recommendations.[8]


Section 409 of the companies act 2013 deals with the qualifications of the president and members of the national company law tribunal.


The qualifications for NCLT are as follows:[9]

  • President should be the person who has or is the judge of the hight court for more than five years.

  • To be qualified to be appointed as a judicial member a person should be a high court judge or a district judge for 5 years or a practicing advocate for at least 10years.

  • To be a qualified technical member in the tribunal a person should be Indian corporate service or Indian legal service member for 10years or a in practice charted accountant for 15years or a in practice cost accountant for 15years or a in practice company secretary for 15yearsor a presiding officer for 5 years at labour court dealing with the industrial disputes or a person with knowledge and experience of more than 15years in the field of law, industrial management, finance, investment, accountancy, labour or administration.


The qualifications for NCLAT are as follows:[10]

  • Chair Person at NCLAT shall be the judge of the supreme court or the chief justice of the high court.

  • Judicial member shall be judge of high court or the member of tribunal for 5 years.

  • A Technical Member shall be a person of proven ability, integrity and standing having special knowledge and experience, of not less than twenty-five years shall be a person with knowledge in the field of law, investment, finance, management etc


Functions of National company law tribunal:[11]

  • The Tribunal will make decisions about all processes brought under the Companies Act, including arbitration, agreements, compromises, reconstruction, and firm winding up.

  • Insolvency proceedings under the 2016 Insolvency and Bankruptcy Code are also adjudicated by the NCLT.

  • There will be no jurisdiction of a civil court over the aforementioned matters.

  • The Sick Industrial Companies (Special Provisions) Act, 1985 and matters pending before the Board for Industrial and Financial Reconstruction (BIFR) may both be resolved by the NCLT.

  • Furthermore to take up any issues that are now before the Appellate Authority for Industrial and Financial Reconstruction

  • It may also take on instances involving company oppression and poor management.


Procedure of Tribunal and Appellate Tribunal [12]

  • The tribunal and the appellate tribunal is bound by the principles of the Code of civil Procedure 1908 but are guided by principle of natural justice.

  • The tribunal and appellate tribunal have power to regulate their own procedure.

  • Summoning and examining a person under oath

  • Collecting the required documents

  • Receiving the evidence in the form of affidavits

  • Issuing commission for examination of witness

  • Dismissing the representations for default

  • Setting aside any order of dismissal representation


A civil court cannot have a jurisdiction of a matter that is being delt in tribunal and appellate tribunal. [13]The provisions of the Limitation Act, 1963 shall, as far as may be, apply to proceedings or appeals before the Tribunal or the Appellate Tribunal, as the case may be. [14]


Cases that are pending to all matters or proceedings related to board of company law administration, all the proceedings under the companies act 1956, cases regarding board of company can be transferred to the tribunals if the appeal is filed within 60days of filing the case in the supreme court and any appeal preferred to the Appellate Authority for Industrial and Financial Reconstruction. [15]


Powers of National Company Law Tribunal: [16]

  • The right to ask the Chief Metropolitan Magistrate for help.

  • Company deregistration

  • Proclaim that a member's responsibility is uncapped.

  • De-registration of corporations is possible in some situations, such as when registration was gained improperly or illegally.

  • Remedy for mismanagement and injustice

  • The ability to hear complaints about corporations' refusals to transfer securities and the correction of member records.

  • Protection of the interests of numerous stakeholders, particularly depositors and non-promoter stockholders.

  • The authority to protect investors against a broad range of wrongdoings carried out by the firm management or any connected consultants and advisors.

  • Depositors who are displeased with the company's conduct or inactions that impair their depositor rights may seek remedies through class lawsuits.

  • Powers that do not authorise the reopening of accounts but that can order the company to reopen its accounts or permit the company to alter its financial statements. Through its director, the corporation may also request a correction of its financial statements from the Tribunal.

  • The authority to conduct investigations or to start investigations. Even abroad, an investigation can be carried out. There are provisions to support foreign courts and investigation agencies throughout investigation proceedings.

  • The authority to look into who owns the business.

  • Authority to freeze corporation assets.

  • The authority to put restrictions on any firm securities.

  • Private limited company formation after public limited company conversion.

  • The Tribunal has the authority to call for General Meetings if the company cannot or has not had an Annual General Meeting or an Extraordinary General Meeting as required by the Companies Act.

  • The authority to change an Indian company's financial year.

Section 413 of the companies act 2013 deals with term of office of the president, chairperson and the members at national company law tribunal[17]. President and Members hold office for 5 years from the date of appointment. The president can hold office until he or she attains the age of 67 years where in the member can hold the office until he or she attains the age of 65 years. Also a person who has not completed the age of 50 shall not be eligible to hold the membership position. The president, member or the chairperson can resign from the tribunal by writing a resignation letter [18]addressed to the central government of India. [19]


Removal of members from the tribunal [20]

A member, president or the chairperson can be removed when

  • Considered insolvent

  • Convicted of an offence that involves moral turpitude

  • Has become physically or mentally incapable

  • Has acquired financial interest that affects the office he/she holds at the tribunal

  • Has abused his/her position

  • When proved of the misbehaviour or incapacity

  • When the removal report has been made by the judge of the supreme court and has been approved by the central government

  • Central government with suggestions or concurrence of Chief justice of India can suspend the president, member or chairperson of the tribunal


LANDMARK JUDGEMENTS

1. Madras Bar Association V. Union Of India2021 SCC online SC 463

2. Union Of India V. R Gandhi 2010 (5) SCALE 514

3. Cyrus Investments Pvt. Ltd. and Anr. v. Tata Sons Ltd. and Ors. [2019] SCC OnLine SC 1450.

4. Binani Industries Ltd. v. Bank of Baroda &Anr., [2018] 1 SCC 407.

5. Innoventive Industries Ltd. v. ICICI Bank &Anr., (2018) 1 SCC 407.[21]


CONCLUSION

The National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) are two key legal institutions in India's corporate and insolvency law framework. The NCLT was established under the Companies Act, 2013, and serves as a forum for adjudicating disputes related to corporate law, mergers and acquisitions, and insolvency and bankruptcy. The NCLT has jurisdiction over matters related to companies and limited liability partnerships (LLPs).


On the other hand, the NCLAT is the appellate body for appeals against orders passed by the NCLT. It was established under the same act and hears appeals related to company law, insolvency, and bankruptcy.


The establishment of these institutions has streamlined the process of resolving disputes and insolvency proceedings, and has brought greater transparency and efficiency to the legal system. They have helped to promote the ease of doing business in India by providing a speedy resolution of disputes and helping to improve investor confidence.


The National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT) have various benefits that promote a smooth and efficient legal system for corporate affairs in India. Only registered Indian companies can use NCLT & NCLAT for dispute resolution, making it a specialized court for corporate matters that reduces the number of cases filed in different forums. The many branches of NCLT & NCLAT ensure access to justice, and its members consist of both judicial and technical experts to make informed decisions. Dissolving a business takes less time with the swift disposition of cases, and the exclusive jurisdiction of NCLT & NCLAT ensures consistency. Essentially, NCLT & NCLAT functions like an ADR centre but is guided by the Code of Civil Procedure 1908, unlike the mediation and conciliation council.


Overall, the NCLT and NCLAT have played a significant role in India's legal and economic development, and their continued functioning is crucial for the growth of India's business ecosystem.


REFERENCES

SITES :

2. National Company Law Appellate Tribunal


STATUTES:

1. The Companies Act ,1956

https://www.mca.gov.in/Ministry/pdf/Companies_Act_1956_13jun2011.pdf

2. The Companies Act,2013

https://www.mca.gov.in/Ministry/pdf/CompaniesAct2013.pdf

3. The Constitution of India

https://legislative.gov.in/constitution-of-india/

4. Code of Civil Procedure ,1908

https://www.indiacode.nic.in/handle/123456789/2191?sam_handle=123456789/1362

5. Sick Industrial Companies Act, 1985

https://www.bcasonline.org/referencer2015-16/other%20laws/Company%20Law/sick_industrial_companies.htm

6. Code Of Criminal Procedure, 1973

https://www.indiacode.nic.in/handle/123456789/16225?sam_handle=123456789/1362

7. Finance Act 2017.

https://www.indiabudget.gov.in/budget2017-2018/ub2017-18/memo/memo.pdf

8. Insolvency And Bankruptcy Code 2016.

https://www.mca.gov.in/Ministry/pdf/TheInsolvencyandBankruptcyofIndia.pdf



BOOKS:

1. Taxman’s Company Law , 24th Edition

3. National Company Law Tribunal And National Company Law Appellate Tribunal , By Prachi ManekarWazalwar

[1]Section 408 Companies Act 2013 [2] National Company Law Tribunal Official Website 29/04/2023. [3]Section 410 Companies Act 2013. [4]Section 61, Section 202 And 211 Of Insolvency And Bankruptcy Act 2016 [5]Section 172, Finance Act 2017. [6]Section 83, Companies Amendment Act 2017. [7]NCLAT Official Website 29/04/2023. [8]Section 408 Companies Act 2013. [9]Section 409 Companies Act 2013. [10]Section 411 Companies Act 2013. [11]National Company Law Tribunal And National Company Law Appellate Tribunal By Prachi ManekarWazalwar. [12]Section 424 Companies Act 2013. [13]Section 430 Companies Act 2013. [14]Section 433 Companies Act 2013. [15]Section 434 Companies Act 2013. [16]National Company Law Tribunal And National Company Law Appellate Tribunal , By Prachi ManekarWazalwar, EBC’s Company Law by Avtar Singh , 17th edition. [17]Section 413 Of The Companies At 2013. [18]Section 416 Of The Companies Act 2013. [19]Taxman’s Company Law , 24th Edition . [20]Section 417 Of The Companies Act 2013. [21]SCC online, 29.04.2023.

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