Filing Petition/Application Under Section 252(1) or Section 252 (3) of the Companies Act, 2013 before NCLT By Praveen Singh


INTRODUCTION

As we all know that Central Government notified NCLT Rules, 2016 on 21st of July, 2016 in the official gazette. The provisions specify the professionals i.e., Company Secretaries, Chartered Accountants and Advocates who can practice before the NCLT or NCLAT. As we the Company Secretaries are new to this field, most of us find it difficult to file application or petition for the revival of a company[1] or any other document or appear before the NCLT as we are not much aware of the procedural aspects of the court.

Apart from general, an attempt has been made to understand the procedural aspects of filing petition/application before the NCLT. With the experience of NCLT court and after having a discussion with the seniors and other members of NCLT court number of times, we, Rasu & Associates having our office at Gurgaon and practising in Delhi-NCR have enumerated the key points to be kept in mind while going for the revival of a company before NCLT court.
 
IMPORTANT DEFINITIONS

(a). “Applicant” means a petitioner or an appellant or any other person or entity capable of making an application including an interlocutory application or a petition or an appeal under the Act;

(b). “filer” means an authorised representative of that person or any party to the proceedings who file any document with the Tribunal in relation to a case filed under the Act, or any rules thereunder;
 
(c). “Petition” means a petition or an application or an appeal or a complaint in pursuance of which any proceeding is commenced before the Tribunal;
 
(d). “Pleadings” means and includes application including interlocutory application, petition, appeal, revision, reply, rejoinder, statement, counterclaim, additional statement supplementing the original application and reply statement under these rules and as may be permitted by the Tribunal;
 
(e). “Reference" means a reference within the meaning of rule 88 of these rules;
 
SITTING HOURS OF NCLT: The Court remains open on all working day from 9.30 A.M. to 6.00 P.M except on Saturdays, Sundays and other national holidays. However, it is just a myth and the bench may stand up before timings as stated above and may sit after 6 P.M. also. Filing Counter of the Registry remains open on all working days from 10.30 AM to 5.00 P.M. It is on the first floor of the building.

INSTITUTION OF PROCEEDINGS, PETITION, APPEALS ETC- SOME IMPORTANT SUGGESTIONS

  • The petition or appeal or application to be filed before the NCLT shall be in English and in case it is in any other language it shall be accompanied with a copy in English;
  • It shall be on the legal size pages, written fairly and should be in legible form;
  • It shall be lithographed or printed in double spacing on one side of standard petition paper;
  • The inner margin shall be about 4 cm, 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;
  • An Appeal or petition or application 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;
  • In case fresh parties are brought in, they may be numbered consecutively in the particular category, in which they are brought in;
  • Every proceeding shall state immediately after the cause title the provision of law under which it is preferred;
  • As per the latest filing is done by us 3 (Three) sets of appeal/petition under Section 252 are to be filed before the NCLT. Apart from that 1 (One) set is to be filed with the RoC that means 5 (Five) sets are to be prepared out of which 3 for are to be filed with NCLT, 1 for RoC and 1 for your record. The same is also provided under Rule 23 of the NCLT Rules, 2016.
  • All documents accompanied with the appeal or petition shall be self-certified. True copy stamped on all Annexure.
  • At the foot of every petition or appeal or pleading, there shall appear the name and signature of the authorised representative;
  • Once the petition or application is admitted before the NCLT, the court notifies to the parties the date and place of hearing, generally, a very short date is provided by the court so keep your eyes on daily cause list available on NCLT website;
  • The Registry shall send a certified copy of the final order passed to the parties concerned free of cost. It is to be noted that the order also published over the portal of NCLT and the certified copies may be made available with cost as per Schedule of fees, in all other cases;
  • Appeal or application under section 252 shall be filed with a statutory fee of Rs. 1000/- Generally it has been seen that as we (the Company Secretaries) are new to this field are filing the application/petition accompanied by a fees of Rs. 2500/-.
 
NECESSARY DOCUMENTS TO BE ACCOMPANIED WITH THE APPEAL/PETITION UNDER SECTION 252 OF THE COMPANIES ACT, 2013:
 
  1. Index of the appeal or petition;
  2. Notice of admission;
  3. Brief synopsis;
  4. Important dates and Events;
  5. Petition or application stating the grounds;
  6. Every petition/application shall be verified by an affidavit in Form No. NCLT 6 and it shall be notarized on a stamp paper of 10 rupees;
  7. The authorised representative e., Company Secretary, Chartered Accountant or Advocate shall make an appearance through the filing of Vakalatnama or Memorandum of Appearance in Form No. NCLT 12 representing the respective parties to the proceedings. It shall be notarized on a stamp paper of 20/- rupees;
  8. Certified true copy of Extract of resolution in favour of the Authorised Signatory/Authorised Representative;
  9. Power of Attorney is must as suggested by the registry for us, it should be notarized on a stamp paper of 50/- rupees;
  10. Master data of the company procured from MCA portal;
  11. Audited financials of the company filing the application/petition for defaulted period;
  12. Certificate of Incorporation, Memorandum and Article of Association of the company;
  13. Notices of RoC issued to concerned company;
  14. Demand draft of statutory fees;
  15. Any other documents like ITR, VAT, GST return, bank statement or other documents which can prove that company was operational at the time of striking off.
These are some of the suggestions which seem very little, however, very important. Hope above article will be helpful for all professionals handling court matters or are in employment.
 
Author
Praveen Singh
(Associate)
RASU & Associates - Company Secretaries
 
The author can be reached at praveen@csrasu.com. Praveen Singh is associated with RASU & Associate. He is having rich experience in Indirect taxation, corporate, commercial and IPR, labour law and other matters.
 
RASU & Associate is a firm of Company Secretaries, having an association with Advocates and Chartered Accountants. The core areas of the firm’s practice are inter alia Indirect Taxation, Corporate, Commercial & Transactions, Regulatory & Compliance, and Intellectual Property Rights Laws, NCLT etc. We provide both Advisory as well as Litigation Services in all the above areas. Our brief profile can be seen at the web address www.rasu-cs.com.
 
Author Disclaimer: This article includes the NCLT Rules and personal experience. The procedure may change anytime, hence, you are advised to consult before going to NCLT. No advice shall be made to anyone solely on the basis of the present article and in no case the author or our firm i.e., Rasu & Associates shall be liable.

Source:
(a). NCLT Rules, 2016
(b). Discussion from members of NCLT, advocates and other senior members;
(c). Our personal experience.
 
[1] We have restricted this article to the only filing of application or petition for the revival of the company.

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Write a Comment

  • My question is whether application can be made against Cooperative Society duly registered for initiation of CIRP?

    Following may please be considered:

    IBC does not speak about body corporate but it says corporate person and corporate debtor. 

    As per S. 3(7) of  IBC Corporate person includes any other person incorporated with limited liability under any law for the time being in force. S. 3(8) says that Corporate Debtor means a Corporate person who owes a debt to any person. It is to be noted that a Cooperative Society is registered under Cooperative Society Act 1912. 

    1. 18 of the Cooperative Societies Act 1912 reads as under:
      "The registration of a society shall render it a body corporate by the name under which it is registered, with perpetual succession and a common seal, and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purposes of its constitution.

      However, S. 2(11)of Companies Act reads as under:
      "Body Corporate or ― Corporation includes a company incorporated outside India, but does not include—

      (i) a co-operative society registered under any law relating to co-operative societies; 
      and
      (ii) any other body corporate (not being a company as defined in this Act), which the Central Government may, by notification, specify in this behalf;

      However, S. 238 of IBC says that provisions of IBC overrides provisions of any other law.  

    I solicit your views in the matter. 

    09-09-2018 / 10:09:07 PM
    Reply
  • Thanks for uploading such blog, we would like to add that now registrar, Delhi is accepting two sets One plus one copy in Paper book format (original duplicate)-Legal Papers and also take complete set in PDF format in pen drive and they would take it data from pen drive and return the pen drive.

    It is also advisable to give undertaking on Rs. 50/- e-stamp paper duly notarised about filing of pending financial statement and returns in ROC online although not mandatory.

     

    All pages are compulsory in legal

    STK-7 compulsory with page out of pages in which petitioner company name is mentioned.

    After 200 pages Vol with dividend. Volume wise separate Index compulsory.

    15-10-2018 / 07:41:57 AM
    Reply
  •  

     

    Advance service to Respondent (ROC and Income Tax) is must and evidence of such service either by post or by hand to be attached with petition

    1. The Registrar of Companies,

    NCT of Delhi

    15-10-2018 / 07:48:38 AM
    Reply