NCLT – comes true…

[Mr. M. GOVINDARAJAN]

With effect from 31.05.1991 vide Companies (Amendment) act, 1988, the Company Law Board was established under Section 10E of the Companies Act, 1956 to exercise and discharge such powers and functions as may be conferred on it.  The Company Law Board is given power to inquire into various matters as conferred in Companies Act, 1956.  However the matters such that winding up, merger, amalgamation etc., are handled by the High Court, designated as Company Court.

Vide   Companies (Amendment) Act, 2002, Part IB and Part IC were inserted in the Companies Act which deal with the constitution of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT).   Part IB, containing Sections 10FB to 10FP provides for the constitution of NCLT and the matters related there at.   Part IC, containing Sections 10FQ to 10GF provides for the constitution of NCLAT and the maters related thereat.  It was proposed that NCLT will perform all the functions vested on Company Law Board and Company Court. 

The provisions of the constitution of NCLT and NCLAT were challenged by the Madras Bar Association on the ground that the Administration tried to usurp the functions of judicial in Tribunals.  The Supreme Court quashed the provisions relating to the constitution of NCLT and NCLAT but it gave directions to do suitable modifications as directed by the Supreme Court. 

The Companies Act, 2013 was enacted replacing the Companies Act, 1956 which came into effect from September 2013. All the provisions have not yet been notified.  The provisions relating to constitution of NCLT and NCLAT are also found in the new Act.  The Madras Bar Association again challenged the provisions relating to NCLT and NCLAT before the Supreme Court.  The Supreme Court upheld the validity of the provisions but gave directions to modify the terms of the appointment of Technical member. 

Appointed date for the provisions relating to Tribunal

Vide Notification No. S.O.1934 (E), dated 01.06.2016 the Central Government appointed the 01.06.2016 as the date on which the provisions relating to Tribunal shall come into force.   The following are the provisions came into effect from 01.06.2016-

• Section 7(7) except clause © and (d) – Incorporation of Company;
• Section 14 (1) and 14(2) – Alteration of articles;
• Section 55 (3) – Issue and redemption of shares;
• Section 61 (1)(b) – Power of Limited company to alter its share capital;
• Section 62 (4), (5), (6) – Further issue of share capital;
• Section 71 (9), (10),(11) – Debentures;
• Section 75 – Damage for fraud;
• Section 97 – Power to Tribunal to call Annual General Meeting;
• Section 98 – Power of Tribunal to call meetings of members;
• Section 99 – Punishment for default in respect of Section 97 or 98;
• Section n119 (4) – Inspection of minute books of general meetings;
• Section 130 – Reopening on accounts on Tribunal’s order;
• Section 131 – Voluntary revision of financial statements or Board’s report;
• Section 140 (4) and (5) – second proviso – reappointment of auditor;
• Section 169 (4) – Reply to the notice for removal of a director;
• Section 213 – Investigation of company’s affairs;
• Section 216 (2) – appointment of Inspectors by the Central Government on the directions of the Tribunal;
• Section 218 – Protection of employees  during the investigation;
• Section 221 – Freezing of assets of company on inquiry and investigation;
• Section 222 – Imposition of restrictions upon securities;
• Section 224(5) – Fraud by any director, key managerial personnel etc., Application by Central Government before NCLT for disgorgement of the assets acquired by fraud;
• Section 241 – Application to Tribunal for relief in cases of oppression., etc.
• Section 242  [(except  clause (b) of Sub section(1), clause (c) & (g) of sub –section (2) which deal with the winding up of a company] – Powers of Tribunal in regard to oppression and mismanagement;
• Section 243 – Consequence of termination or modification of certain agreements;
• Section 244 – Right to apply under Section 241;
• Section 245 – Class action;
• Section 399 (2) – Compelling the production of documents with the leave of the Tribunal;
• Section 415 – Acting President and Chairperson of Tribunal or Appellate Tribunal;
• Section 416 – Resignation of Members;
• Section 417 – Removal of Members;
• Section 418 – Staff of Tribunal and Appellate Tribunal;’
• Section 419 – Benches of Tribunal;
• Section 420 – Orders of the Tribunal;
• Section 421 – Appeal from orders of Tribunal;
• Section 422 – Expeditious disposal by Tribunal and Appellate Tribunal;
• Section 423 – Appeal to Supreme Court;
• Section 424 – Procedure before Tribunal and Appellate Tribunal;
• Section 425 – Power to punish for contempt;
• Section 426 – Delegation of powers;
• Section 427 – President, Members, Officers, etc., to be public servants;
• Section 428 – Protection of action taken in good faith;
• Section 429 – Power to seek assistance of Chief Metropolitan Magistrate, etc.,
• Section 430 – Civil Court not to have jurisdiction;
• Section 431 – Vacancy in Tribunal or Appellate Tribunal not to invalidate acts or proceedings;
• Section 432 – Right to legal representation;
• Section 433 – Limitation;
• Section 434 (1)(a) & (b)  – Transfer of certain pending proceedings before CLB to Tribunal;
• Section 434 (2) – Power of Central Government to make rules to transfer the pending proceedings to the Tribunal;
• Section 441 – Compounding of certain offences;
• Section 466 – Dissolution of CLB and consequential provisions.

NCLT Benches

                        Vide Notification No. S.O. 1935(E), dated 01.06.1956 the Central Government constituted the following NCLT Benches-

•  
• NCLT, New Delhi Bench – Jurisdiction – State of Haryana, Rajasthan and Union Territory of Delhi;
• NCLT, Ahmadabad Bench – Jurisdiction- State of Gujarat, Madhya Pradesh, Union territory of Dadra and Nagar Haveli;
• NCLT, AllahabadBench – Jurisdiction – State of Uttar Pradesh and Uttarakhand;
• NCLT, Bengaluru Bench – Jurisdiction – State of Karnataka;
• NCLT, Chandigarh Bench – Jurisdiction – State of Himachal Prades, Jammu and Kashmir, Punjab and Union Territory of Chandigarh;
• NCLT, Chennai Bench – Jurisdiction -State of Kerala, Tamil Nadu, Union territory of Lakshadweep and Union territory of Puducherry;
• NCLT, Guwahati Bench – Jurisdiction – State of Arunachal Pradesh, Assam, Manipur, Mizoram, Meghalaya, Nagaland, Sikkim, and Tripura;
• NCLT, Hyderabad Bench – Jurisdiction – State of Andhra Pradesh and Telengana;
• NCLT, Kolkata Bench – Jurisdiction – State of Bihar, Jharhand, Odisha, West Bengal, and Union Territory of Andaman and Nicobar Islands;
• NCLT, Mumbai Bench – Jurisdiction – State of Chhatisgarh, Goa and Maharastra.

Transfer of proceedings from CLB

Vide Notification dated 01.06.2016 (yet to be notified) the Central Government appointed 01.06.2016 on which all matters or proceedings or cases pending before the Board of Company Law Administration shall stand transferred to the National Company Law Tribunal and it shall dispose of such matters or proceedings or cases with the provisions of the Companies Act, 2013 or the Companies Act, 1956.

The provisions relating to the matters in regard to winding up are yet to be notified.   Then only the matters pending before the Company Court can be transferred to NCLT, after which the Tribunal will perform its functions in the full swing.  The new changes increase the professional opportunities to practicing Cost Accountants, Company Secretaries and Chartered Accountants.