NCLAT appeal filing procedure as per NCLAT Rules 2016

NCLAT appeal filing procedure

NCLAT appeal filing procedure as per National Company Law Appellate Tribunal Rules, 2016 notified on 21.07.2016

• Sitting of Appellate Tribunal: The Appellate Tribunal shall hold its sitting at its headquarters in New Delhi.
• Sitting hours of the Appellate Tribunal :The sitting hours of the Appellate Tribunal shall ordinarily be from 09.30 AM. to 01.00 P.M. and from 2.15 P.M. to 5.00 P.M. subject to any order made by the Chairperson and this shall not prevent the Appellate Tribunal to extend its sitting as it deems fit.
• Working hours of office :The office of the Appellate Tribunal shall remain open on all working days from 09:30 A.M. to 6.00 P.M.The filing counter of the Registry shall be open on all working days from 10.30 AM to 5.00 P.M.
• Listing of cases :All urgent matters filed before 12 noon shall be listed before the Appellate Tribunal 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 Appellate Tribunal or Chairperson.
• Appearance of authorised representative:Subject to provisions of Section 432 of the Act, a party to any proceedings or appeal before the Appellate Tribunal may either appear in person or authoise one or more chartered accountants or company secretaries of cost accountants or legal practitioners of any other person to present his case before the Appellate Tribunal.
• Proof of engagement :(1) Where an advocate is engaged to appear for and on behalf of the parties, he shall submit Vakalatnama.(2) The professionals like chartered accountants or company secretaries or cost accountants shall submit Memorandum of Appearance.
• Restriction on party’s right to be heardThe party who has engaged a authorised representative to appear for him before the Appellate Tribunal shall not be entitled to be heard in person unless permitted by the Appellate Tribunal.
•  Professional dress for the authorised representative While appearing before the Appellate Tribunal, the authorised representative shall wear the same professional dress as prescribed in their Code of Conduct.
• Filling through electronic media :The Appellate Tribunal may allow filing of appeal or proceedings through electronic mode such as online filing and provide for rectification of defects by e-mail or internet and in such filing, these rules shall be adopted as nearly as possible on and form a date to be notified separately and the Central Government may issue instructions in this behalf from time to time.
• Fee for Appeal(1) Fee for filing appeal or interlocutory application, and process fee shall be, as prescribed in the Schedule of fee to these rules.(2) The fee and process fee shall be deposited by separate demand draft or Indian Postal Order favouring the Pay and Accounts Officer, Ministry of Corporate Affairs, payable at New Delhi.

  (3) The Appellate Tribunal may, to advance the cause of justice and in suitable cases, waive payment of such fee or portion thereof, taking into consideration the economic condition or indigent circumstances of the petitioner or appellant or applicant or such other reason, as the case may be.

• Powers and functions of the Registrar

  • (a)		registration of appeals, petitions and applications;
    (b)		receive applications for amendment of appeal or the petition or application or subsequent proceedings.
    (c)		receive applications for fresh summons or notices and regarding services thereof;
    (d)		receive applications for fresh summons or notice and for short date summons and notices;
    (e)		receive applications for substituted service of summons or notices;
    (f)		receive applications for seeking orders concerning the admission and inspection of documents;
    (g)		transmission of a direction or order to the civil court as directed by Appellate Tribunal with the prescribed certificate for execution etc; and
    (h)		such other incidental or matters as the Chairperson may direct from time to time.

• Institution of appeals – Procedure.

  • 1) Every appeal to the Appellate Tribunal shall be in English and in case it is in some other Indian language, it shall be accompanied by a copy translated in English and shall be fairly and legibly type-written or printed in double spacing on one side of standard paper with an inner margin of about four centimeters 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.

    (2) The cause title shall state “In the National Company Law Appellate Tribunal” and also set out the proceedings or order of the authority against which it is preferred.

    (3) Appeal 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.

    (4) Where Saka or other dates are used, corresponding dates of Gregorian calendar shall also be given.

    (5) Full name, parentage, description of each party and address and in case a party sue or being sued in a representative character, shall also be set out at the beginning of the appeal and need not be repeated in the subsequent proceedings in the same appeal.

    (6) The names of parties shall be numbered consecutively and a separate line should be allotted to the name and description of each party and these numbers shall not be changed and in the event of the death of a party during the pendency of the appeal, his legal heirs or representative, as the case may be, if more than one shall be shown by sub-numbers.

    (7) Where fresh parties are brought in, they may be numbered consecutively in the particular category, in which they are brought in.

    (8) Every proceeding shall state immediately after the cause title and the provision of law under which it is preferred.

• Particulars to be set out in the address for service
  • The address for service of summons shall be filed with every appeal on behalf of a party and shall as far as possible contain the following items namely:-
    

    (a)		the name of the road, street, lane and Municipal Division or Ward, Municipal Door and other number of the house;
    (b)		the name of the town or village;
    (c)		the post office, postal district and PIN Code; and
    (d)		any other particular necessary to identify the addressee such as fax number, mobile number and e-mail address, if any.

• Presentation of appeal
  • (1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised representative duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same.(2) Every appeal shall be accompanied by a certified copy of the impugned order.

    (3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon.

    (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed.

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

    (6) The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filled along with memorandum of appeal.

• Number of copies to be filed: The appellant or petitioner or applicant or respondent shall file three authenticated copies of appeal or counter or objections, as the case may be, and shall deliver one copy to each of the opposite party.
• Endorsement and verification :-At the foot of every appeal or pleading there shall appear the name and signature of the authorised representative and every appeal or pleadings shall be signed and verified by the party concerned in the manner provided by these rules.
• Production of authorisation for and on behalf of an association :Where an appeal purported to be instituted by or on behalf of an association, the person who signs or verifies the same shall produce along with such appeal, for verification by the Registry, a true copy of the resolution of the association empowering such person to do so:Provided that the Registrar may at any time call upon the party to produce such further materials as he deems fit for satisfying himself about due authorization:

  Provided further that it shall set out the list of members for whose benefit the proceedings are instituted.

• Translation of document :(1) A document other than English language intended to be used in any proceeding before the Appellate Tribunal shall be received by the Registry accompanied by a copy in English, which is agreed to by both the parties or certified to be a true translated copy by the authorised representative engaged on behalf of parties in the case.(2) The Registrar may order translation, certification and authentication by a person approved by him for the purpose on payment of such fee to the person, as specified by the Chairperson.

  (3) Appeal 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 with the Appellate Tribunal.

• 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 Form NCLAT-2 and the requirements prescribed in that behalf shall be complied with by the applicant, besides filing a affidavit supporting the application.
• 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 initialed by the officer authorized to receive the same.
• Inspection of the records (1) The parties to any case or authorised representative may be allowed to inspect the record of the case by making an application in writing to the Registrar and fee prescribed therein.(2) Subject to such terms and conditions as may be prescribed by the Chairperson by a general or special order, a 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.
• Grant of inspection :inspection of records of a pending or decided case before the Appellate Tribunal shall be allowed only on the order of the Registrar.
• Application for grant of inspection :(1) Application for inspection of record under rule 58 shall be in the Form NCLAT-3 and presented at the filing counter of the 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.(2) The Registry shall submit the application with its remarks before the Registrar, who shall on consideration of the same, pass appropriate orders.

  (3) 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.

• Fee payable for inspection Fee as given in the Schedule of the fees appended to these rules shall be payable by way of Demand Draft or Indian Postal Order to be drawn in favour of the Pay and Accounts Officer, Ministry of Corporate Affairs, New Delhi on any application for inspection of records of a pending or decided case.
• Mode of inspection(1) On grant of permission for inspection of the 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 authorized in that behalf.(2) The person inspecting the records shall not in any manner cause dislocation, mutilation, tampering or damage to the records in the course of inspection.

  (3) 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.

  (4) 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.

• Endorsement and scrutiny of petition or appeal or document :(1) The person in charge of the filing-counter shall immediately on receipt of appeal or document affix the date and stamp of the Appellate 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.(2) If, on scrutiny, the appeal 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.

  (3) 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.

  (4) 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 appeal or pleading or document.

• Registration of proceedings admitted :On admission of appeal, the same shall be numbered and registered in the appropriate register maintained in this behalf and its number shall be entered therein.
• Ex-parte amendments :In every appeal or application, arithmetical, grammatical, clerical and such other errors may be rectified on the orders of the Registrar without notice to Parties.
• Statutes or citations for reference :The parties or authorised representatives 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 photo copy of full text thereof.
• Issue of notice (1) Where notice of an appeal or petition or interlocutory application is issued by the Appellate Tribunal, copies of the same, the affidavit in support thereof and if so ordered by the Appellate Tribunal the copy of other documents filed therewith, if any, shall be served along with the notice on the other side.(2) The copies of the documents referred to sub-rule (1) shall show the date of presentation of the appeal or interlocutory application and the name of the authorised representative, if any, of such party with his full address for service and the interim order, if any, made thereon.

  (3) The Appellate Tribunal may order for issuing notice in appropriate cases and also permit the party concerned for service of said notice on the other side by Dosti and in such case, deliver the notice to such party and it is for such party to file affidavit of service with proof.

• Summons :Whenever summons or notice is ordered by private service, the appellant or applicant or petitioner as the case may be, unless already served on the other side in advance, shall arrange to serve the copy of all appeals or petitions or applications by registered post or courier service and file affidavit of service with its proof of acknowledgement before the date fixed for hearing.
• Steps for issue of fresh notice :(1) If any notice issued under rule 46 is returned unserved, that fact and the reason thereof shall be notified immediately on the notice board of the Registry.(2) The applicant or petitioner or his authorised representative shall within seven days from the date of the notification, take steps to serve the notice afresh.
• Consequence of failure to take steps for issue of fresh notice :Where, after a summon has been issued to the other side, and returned unserved, and the applicant or petitioner or appellant, as the case may be, fails to take necessary steps within the period as ordered by the Appellate Tribunal from the date of return of the notice on the respondent(s), the Registrar shall post the case before the Appellate Tribunal for further directions or for dismissal for non-prosecution.
• 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, the Appellate Tribunal may proceed to hear the appeal ex-parte and pass final order on merits.Provided that it is open to the Appellate Tribunal 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.
• Filing of objections by respondent, form and consequences (l)The respondent, if so directed, shall file objections or counter within the time allowed by the Appellate Tribunal. (2) The objections or counter shall be verified as an appeal and wherever new facts are sought to be introduced with the leave of the Appellate Tribunal for the first time, the same shall be affirmed by a supporting affidavit.(3) The respondent if permitted to file objections or counter in any proceeding shall also file three copies thereof after serving copies of the same on the appellant or petitioner or their authorised representatives, as the case may be.
• Affidavits
  • Title of affidavits :Every affidavit shall be titled as “Before the National Company Law Appellate Tribunal.” followed by the cause title of the application or other proceeding in which the affidavit is sought to be used.
  • Form and contents of the affidavit :The affidavit as per Form NCLAT-4 shall conform to the requirements of order XIX, rule 3 of Civil Procedure Code, 1908 (5 of 1908).
  • Persons authorised to attest :Affidavits shall be sworn or affirmed before an Advocate or Notary, who shall affix his official seal.
  • 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 shall be in Form NCLAT-5, the attestor 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 attestor.
  • Identification of deponent :If the deponent is not known to the attestor, his identity shall be testified by a person known to him and the person identifying shall affix his signature in token thereof.
  • Annexures to the affidavit :(1) Document accompanying an affidavit shall be referred to therein as Annexure number and the attestor shall make the endorsement thereon that this is the document marked putting the Annexure number in the affidavit.(2) The attestor shall sign therein and shall mention the name and his designation.
• Application for production of documents, form of summons (1) Except otherwise provided hereunder, discovery or production and return of documents shall be regulated by the provisions of the Code of Civil Procedure, 1908 (5 of 1908).(2) An application for summons to produce documents shall be on plain paper setting out the documents the production of which is sought, the relevancy of the documents 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.

  (3) A summons for production of documents in the custody of a public officer other than a court shall be addressed to the concerned Head of the Department or such other authority as may be specified by the Appellate Tribunal.

• Suo motu summoning of documents: the Appellate Tribunal may, suo motu, issue summons for production of public document or other documents in the custody of a public officer in Form NCLAT-6.
• Marking of documents :(1)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)		The Appellate Tribunal exhibits shall be marked as ‘C series.

  (2) The Appellate Tribunal may direct the applicant to deposit with Appellate Tribunal 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.

• Return and transmission of documents(1) An application for return of the documents produced shall be numbered and such application shall be entertained after the destruction of the records.(2) The Appellate Tribunal may, at any time, direct return of documents produced subject to such conditions as it deems fit
• Order sheet 1) Order sheet shall be maintained in every proceedings by the Court Master and shall contain all orders passed by the Appellate Tribunal from time to time .(2) All orders passed by the Appellate Tribunal shall be in English and the same shall be signed by the Members of the Appellate Tribunal constituting the Bench:

  Provided that the routine orders, such as call for of the records, put up with records, adjourned and any other order as may be directed by the Member of the Appellate Tribunal shall be signed by the Court Master.

  (3) The order sheet shall also contain the reference number of the appeal or petition or application, date of order and all incidental details including short cause title thereof.