FUNDAMENTALS OF APPEARANCE AND COURT ETIQUETTES BY : - Advocate Ashutosh Gupta Indo Legal Services, Advocate & Solicitor

Scope for Company Secretary in Litigation Before Security Exchange Board of India (SEBI) Before Companies Act, 2013 Before Competition Act, 2002 Before Telecom Regulatory Authority of India (TRAI) Act, 1997 Section 35 authorizes Company Secretaries to appear before the  Competition Commission of India Section 53S authorizes Company Secretaries to appear before the Competition Appellate Tribunal Section 432 of the Companies Act, 2013 authorizes Company Secretary to appear before National Company Law Tribunal and National Company Law Appellant Tribunal Section 17 of TRAI authorizes Company Secretaries to present his or its case before the Appellate Tribunal Section 15 V authorizes Company Secretaries to appear before the Security Appellate Tribunal

Introduction to National Company Law Tribunal The National Company Law Tribunal constitued under Section 408 of Companies Act, 2013 on 1st June, 2016 A quasi Judicial body that adjudicate all proceedings under Companies Act including compromise and arrangment, restructurings, Insolvency Resolution Process of Companies and LLPs etc. The Appellant Authority of NCLT is National Company Law Appellant Tribunal (“NCLAT”) having Tribunal at New Delhi. NCLT and NCLAT were constituted to replace Company Law Board.

Historical Tour To NCLT Recommendation of the Justice Eradi Committee.  The Companies (Second Amendment) Act, 2002 provided provision for sitting up of NCLT and NCLAT to replace the existing CLB.  The Hon’ble Supreme Court in Union of India v. R. Gandhi, President, Madras Bar Association [(2010) 11 SCC 1 questioned the constitutional validity of NCLT and NCLAT. The Parliament Notified Companies Act, 2013 replacing 1956 Act The Apex Court on 14th May, 2015 in Madras Bar Association vs Union of India & Anr. [(2015) 8 SCC 583] held the constitutional validity of NCLT and NCLAT.

Benches of NCLT The Tribunal has 13 benches all over India Benches Jurisdiction 2 Bench in New Delhi -Principal Bench, New Delhi Bench Union Territory of Delhi Ahmedabad Bench State of Gujarat, Madhya Pradesh. Union territory of Dadra & Nagar Haveli and Daman and Diu. Allahabad Bench State of Uttar Pradesh and Uttarakhand. Bengaluru Bench State of Karnataka. Chandigarh Bench State of Himachal Pradesh, Jammu and Kashmir, Punjab and Haryana. Union Territory of Chandigarh Cuttack Bench State of Chhattisgarh and Odisha. Guwahati Bench State of Arunachal Pradesh, Assam, Manipur, Mizoram, Meghalaya, Nagaland, Sikkim and Tripura. Hyderabad Bench State of Andhra Pradesh and Telangana Jaipur Bench State of Rajasthan Kolkata Bench State of Bihar, Jharkhand and West Bengal. Union territory of Andaman and Nicobar Island. Mumbai Bench State of Goa and Maharastra Two New Benches are approved to be set up in Amravati and Indore.

National Company Law Tribunal Composition of NCLT National Company Law Tribunal President Is or has been a Judge of High Court for 5 years Judicial Member Is or has been a judge of a High Court or a District Judge for at least five years; least ten years been an advocate of a court. Technical Member Is or has been member of the ICLS or ILS (15 years or more); Chartered Accountant or Cost Accountant or Company Secretary (15 years or more); a person of special. Knowledge in law, industrial finance, industrial etc. (15 years or more); presiding officer of a Labour Court, or Tribunal (5 years or more)

National Company Law Appellant Tribunal Composition of NCLAT National Company Law Appellant Tribunal Chairperson Is or has been a Judge of Supreme Court/ Chief Justice of High Court for 5 years Judicial Member Is or has been a judge of a High Court or is a Judicial member of Tribunal for 5 years or more. Technical Member A person of special. Knowledge & experience of atleast 25 years, in law, `industrial finance, administration, investment, accountancy etc.

Work Schedule of the Tribunal and Appellant Body National Company Law Tribunal Working Hours- Tribunal remains open all working days 09.30AM to 6.00 PM, except Saturdays, Sundays and National Holidays Registry/Filing Counter – opens all working days from 10.30AM to 5.00 PM Setting Hours- Tribunal shall hold its sitting at headquarter or at place under its jurisdiction from 10.30 AM to 01.00 PM and 02.00 PM to 4.30 PM National Company Law Appeallant Tribunal Tribunal remains open all working days 09.30AM to 6.00 PM, except Saturdays , Sundays and National Holidays The Tribunal shall hold its sitting at headquarter or at place under its jurisdiction from 09.30 AM to 01.00 PM and 02.15 PM to 5.00 PM

All Corporate Litigation under One Roof High Court BIFR NCLT CLB

Areas of Practice for Company Secretary NCLT has widen the Areas of practice for a Company Secretary in the following fields; Compromise And Arrangement – Company Secretary advising and assisting on merger, amalgamation, demerger, reverse merger, compromise and other arrangements right from the conceptual to implementation level. Insolvency Proceedings – Representing the Insolvency Case under insolvency Bankruptcy Code, 2016 before the Tribunal. Oppression & Mismanagement - Representing the case before the Tribunal Reduction of Capital- Representing cases of reduction of capital before the Tribunal. Revival of Companies – Representing the case of revival of Company before Tribunal Practicing Company Secretary as a Member of National Company Law Tribunal

Essential Documents and Information required for Areas of Pratice Oppression & Mismanagement Under Section 241-242 of Companies Act, 2013 Documents Required Certificate of Incorporation, MOA & AOA Balance Sheet & Annual Return Document reflecting change in Share Capital Documents of siphoning of funds Any other document sufficing conduct of oppression & Mismanagement Information Required Details of Petitioner The act of oppression Change in constitution of Capital Transfer of shares Change in Directorship Detail of Banking operations, change in operations Oppression & Mismanagement Under Section 241-242 of Companies Act, 2013

Essential Documents and Information required for Areas of Pratice Mergers, Amalgamation & De-mergers Under Section 241-242 of Companies Act, 2013 Documents Required Certificate of Incorporation, MOA & AOA Auditors Report Consent in the form of Affidavit Scheme Valuation Report CA Certificate verifying the compliance of Section 133 of CA, 2013 Information Required Details of Applicant/Petitioner Companies Authorized Share Capital of the Companies Number of Shareholders, Creditors and Directors Share – Exchange Ratio Appointment Date Oppression & Mismanagement Under Section 241-242 of Companies Act, 2013

Essential Documents and Information required for Areas of Pratice Revival of Companies Under Section 252 of Companies Act, 2013 Documents Required Certificate of Incorporation, MOA & AOA Bank Statement reflecting operations of the Company Annual Returns which are not filed Notice in STK 1 Income Tax Returns, other tax returns List of Shareholders and Directors Information Required Detailed description about the Company and its business Description of the Appellants Achievements of the business activities Reason of non filing of Returns Oppression & Mismanagement Under Section 241-242 of Companies Act, 2013

Essential Documents and Information required for Areas of Pratice Insolvency Proceedings Under Section 7 of Insolvency Bankruptcy Code, 2016 Documents Required Bankers Entries as per Bankers Book Evidence, 1981 Document evidencing default Calculation Sheet Form 2 along with IRP Certificate Any other document to suffice the case Information Required Description about the Corporate Debtor Company Kind of transaction involved Amount of Debt along with Interest Period of Default Details of proposed insolvency professional Oppression & Mismanagement Under Section 241-242 of Companies Act, 2013

Essential Documents and Information required for Areas of Pratice Insolvency Proceedings Under Section 9 of Insolvency Bankruptcy Code, 2016 Documents Required Invoices Affidavit under Section 9(3)(b) of IBC, 2016 Affidavit under Section 9 (3)(c) of IBC, 2016 Demand Notice Calculation Sheet Any other document evidencing default Information Required Description about the Operational Creditor and Corporate Debtor Company Kind of transaction involved Amount of Debt along with Interest Default Date Oppression & Mismanagement Under Section 241-242 of Companies Act, 2013

Code of Drafting of Pleadings Appeal or Petition or Application shall be in English Language. Printed in double spacing on one side of standard Legal Size paper Margins- Inner margin of 4 cm width on top , right margin of 2.5. cm and left margin of 5 cm Each page of the pleading duly paginated, indexed and stitched in paper book. Cause Title- “Before the National Company Law Tribunal” Content must be divided into paragraphs consecutively numbered. Full name, address, age, description of each party shall be given in the beginning.

What is Required for Appearance Representation of Client Drafting Capability Subject Knowledge & Practical Exposure Communicate Effectively Court Craft Drafting Capabilities

Fundamentals of Appearance Remember that you are always being observed. Impactful Impression Listen to understand not just respond Be a Listener first Stay subtle, diligent and professional in your conduct Observe Mannerism

Fundamentals of Appearance Stay Courteous towards all the Court officials and even opposing counsels too Be Courteous Either must not be compromised in order to honor both the court as well as the profession Punctuality and Preparedness Keep arguments to the point and law centric Be Precise

Fundamentals of Appearance Every Tribunal is different. Therefore, tailor your advocacy style to suit the forum. Know Your Audience Ensure that while tendering documents/ citations to Tribunal one have enough copies to circulate to other side. Keep multiple copies Regardless of the case, believe in your submissions. Tribunal observes when there is a half hearted submission Believe in Submissions

Fundamentals of Appearance Acquire Complete clarity upon each and every aspect of the case before appearance. Know your Case One must be clear in their submission in order to avoid discrepancies Be Clear Regardless of the case, believe in your submissions. Tribunal observes when there is a half hearted submission Believe in Submissions

Fundamentals of Appearance Stand-up before interacting with Tribunal Keep Phone Silent Address the Judge Respectfully Unwritten Rules to abide by - Be Submissive with court officials Avoid Slangs Dress Appropriately

Legal Professional Ethics & Court Etiquette Duty to the Client Conflict of Duties Confidentiality Officer of the Court STANDARD OF ETHICS

Legal Professional Ethics & Court Etiquette Appropriate Attire- As per ICSI Rules before Tribunal Be Humble - With Court staff as well as with other parties While waiting for hearing Leave Bench for seniors Be prepared- With facts of the case at first and Later on with Law Listen to any instructions given by the Tribunal or its attendant COURT ETIQUETTE

Time Management Being busy isn’t the same - Be effective. Spend more time on case- Be laborious Use your free time for reading- Stay updated Devote your entire focus to the task at hand- Avoid muti-tasking

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