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National Company LAw Tribunal
National Company LAw Tribunal
NCLAT or “Appellate Tribunal” is an authority provided for dealing with appeals arising
out of the decisions of the Tribunal. It is formed for correcting the errors made by the
Tribunal. It is an intermediate appellate forum where the appeals lie after order of the
Tribunal. The decisions of Appellate Tribunal can further be challenged in the Supreme
Court. Any party dissatisfied by any order of the Tribunal may bring an appeal to contest
that decision. The Appellate Tribunal reviews the decisions of the Tribunal and has
power to set aside, modify or confirm it.
The NCLT has primary jurisdiction whereas NCLAT has appellate jurisdiction. NCLAT
is a higher forum than NCLT. Evidence and witnesses are generally presented before
NCLT for taking the decisions and NCLAT generally reviews decisions of NCLT and
checks it on a point of law or fact. Fact finding and evidence collection is primarily a task
of Tribunal whereas the Appellate Tribunal decide cases based on already collected
evidences and witnesses.
Background of NCLT
1. Class Action:
The Companies Act, 2013 has provided a very good combination of remedies where the
offender will be punished and the people who are involved (whether it is the company or
directors or auditor or experts or consultants) will be liable even for a civil action
(namely class action), wherein they have to compensate the shareholders and depositors
for the losses caused to them on account of the fraudulent practices or improprieties.
A class action is a procedural device that permits one or more plaintiffs to file and
prosecute a lawsuit on behalf of a larger group, or “class”. It is in the nature of a
representative suit where the interest of a class is represented by a few of them. A huge
number of geographically dispersed shareholders/depositors are affected by the
wrongdoings. It is a useful tool where a few may sue for the benefit of the whole or
where the parties form a part of a voluntary association for public or private purposes,
and may be fairly supposed to represent the rights and interests of the whole.
Section 245 has been introduced in the new company law to provide relief to the
investors against a large set of wrongful actions committed by the company management
or other consultants and advisors who are associated with the company.
Class action can be filed against any type of companies, whether in the public sector or in
the private. It can be filed against any company which is incorporated under
the Companies Act, 2013 or any previous Companies Act. The Act provides only one
exemption i.e. banking companies.
2. Deregistration of Companies:
The procedural errors at the time of registration can now be questioned at any time. The
Tribunal is empowered to take several steps, including cancellation of registration and
dissolving the company. The Tribunal can even declare the liability of members
unlimited. Sec 7(7) provides this new way for de- registration of companies in certain
circumstances when there is registration of companies is obtained in an illegal or
wrongful manner. Deregistration is a remedy that is distinct from winding up and striking
off.
The remedy of oppression and mismanagement is retained in 2013 Act. The nature of this
remedy has however changed to certain extent and it needs to be seen in light of the
changes made to the Companies Act, 2013. The 2013 Act has reset the bar for oppression
to a little lower level but has set the bar of mismanagement a little higher by applying the
test “winding up on just and equitable grounds” even to mismanagement matters. The Act
permits dilution of the eligibility criteria with the permission of Tribunal, where a
member below the eligibility criteria can apply in deserving cases.
5. Deposits:
Chapter V dealing with deposits was notified in phases in 2014 and powers to deal with
the cases under it were assigned in CLB. Now the said powers will be vested in NCLT.
The law on deposits is quite distinct under the Companies Act, 2013 as compared to
the Companies Act, 1956. The provision for deposits under 2013 Act were already
notified. Aggrieved depositors also have the remedy of class actions for seeking redressal
for the acts/omissions of the company which hurt their rights as depositors.
Chapter XIV provides several powers to the Tribunal in connection with investigations.
The most important powers that are conferred to the Tribunal are:
a) power to order investigation: Under the Companies Act, 2013, only 100 members (as
against 200 members required under the Companies Act, 1956) are required to apply for
an investigation into the affairs of a company. Further, the power to apply for an
investigation is given to any person who is able to convince the Tribunal that
circumstances exist for initiating investigation proceedings. An investigation can be
conducted even abroad. Provisions are made to take as well as provide assistance to
investigation agencies and courts of other countries with respect to investigation
proceedings.
d) power to freeze assets of the company: The Tribunal is given the power to freeze
assets of the company which can not only be used when the company is under
investigation, but can also be initiated at the insistence of a wide variety of persons in
certain situations.
Sections 13, 14, 15 and 18 of the Companies Act, 2013 read with rules regulate the
conversion of public limited company into private limited company. It requires approval
from the NCLT. Approval of the Tribunal is required for such conversion. The Tribunal
may at its discretion impose certain conditions subject to which approvals may be granted
(sec 459).
10. Compounding of Offence:
Provisions of compounding under the 2013 Act were notified before the constitution of
NCLT and were assigned to CLB. This power will now be vested with NCLT, and all
compounding matters which are above the prescribed monetary limit will be approved by
NCLT.
Section 2 (41) also has been already notified on 1 April 2014. The Act requires that every
company or body corporate, new or existing, must have a uniform financial year ending
on 31 March. It provides an exception where certain companies can apply to the Tribunal
to have a different financial year. A company or a body corporate can make an
application to the Tribunal. As the Tribunal was not notified at the time when this section
was notified, the power to alter the financial year on application was granted to the CLB.
The regulation provides the manner for making the application to CLB. The same has
notified on the site of CLB vide order dated 28 January 2015. All the application that are
not disposed of at the time when NCLT provisions are notified, will also be transferred to
the Tribunal.