INTRODUCTION:
National Company Law Appellate Tribunal (NCLAT) was constituted under Section 410 of the Companies Act, 2013 for hearing appeals against the orders of National Company Law Tribunals (NCLT). NCLAT is also the appellate tribunal for hearing appeals against the orders passed by NCLTs under Section 61 of the Insolvency and Bankruptcy Code, 2016 (IBC) and Insolvency and Bankruptcy Board of India under Section 202 and Section 211 of IBC.
NCLAT is also the appellate tribunal to hear and dispose of appeals against any direction issued or decision made or order passed by the Competition Commission of India (CCI) – as per the amendment brought by the Finance Act, 2017.
NCLAT decisions can be challenged in the Supreme Court on a point of law. In some cases, NCLAT decisions have been overturned by the SC, like in the case of ArcelorMittal when the top court set aside the tribunal’s order to pave way for the global steel giant to acquire Essar Steel.
Composition
§ The chairperson and judicial members of the Appellate Tribunal shall be appointed after consultation with the Chief Justice of India.
§ The members of the tribunal and the technical members of the Appellate Tribunal shall be appointed on the recommendation of a Selection Committee consisting of:
1.Chief Justice of India or his nominee (Chairperson).
2.A senior judge of the Supreme Court or a Chief Justice of the High Court
3.Secretary in the Ministry of Corporate Affairs
4.Secretary in the Ministry of Law and Justice
5.Secretary in the Department of Financial Services in the Ministry of Finance
§ Chairperson – Should be/been judge of the Supreme Court or should be/been Chief Justice of the High Court.
§ Judicial Member – Is/has been a judge of a High Court or is a judicial member of a tribunal for 5 years or more.
§ Technical member- Person with proven ability, integrity and standing having special knowledge and experience of 25 years or more (in specified areas)
§ Term of office of chairperson and members is 5 years and they can be reappointed for additional 5 years.
The power and procedure to regulate its proceedings.
the Appellate Tribunal is bound by the rules laid down in the Code of Civil Procedure and is guided by the principles of natural justice, subject to the other provisions of this Act and of any rules that are made by the Central Government. the Appellate Tribunal has the power to control its own procedure.
Further, no civil court has the jurisdiction to consider any suit or proceeding with reference to any matter which the Tribunal or the Appellate Tribunal is empowered to decide.
Appeal from order of Tribunal can be raised to the National Company Law Appellate Tribunal (NCLAT). Appeals can be made by any person aggrieved by an order or decision of the NCLT, within a period of 45 days from the date on which a copy of the order or decision of the Tribunal.
On the receipt of an appeal from an aggrieved person, the Appellate Tribunal would pass such orders, after giving an opportunity of being heard, as it considers fit, confirming, changing or setting aside the order that is appealed against.The Appellate Tribunal is required to dispose the appeal within a period of six months from the date of the receipt of the appeal.
Procedure before Tribunal and Appellate Tribunal ( SECTION 424 OF COMPANIES ACT 2013)
(1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act and of any rules made thereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure.
(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or a copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents;
(f) dismissing a representation for default or deciding it ex parte;
(g) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
(h) any other matter which may be prescribed.
(3) Any order made by the Tribunal or the Appellate Tribunal may be enforced by that Tribunal in the same manner as if it were a decree made by a court in a suit pending therein, and it shall be lawful for the Tribunal or the Appellate Tribunal to send for execution of its orders to the court within the local limits of whose jurisdiction,—
(a) in the case of an order against a company, the registered office of the company is situate; or
(b) in the case of an order against any other person, the person concerned voluntarily resides or carries on business or personally works for gain.
(4) All proceedings before the Tribunal or the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860), and the Tribunal and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
