Provisions of Appeal before NCLAT.

                                  
Any person who is aggrieved by the order of National Company Law Tribunal can file an Appeal before the NCLAT

First of all we have to understand the power and jurisdictions of NCLT before institutions of Appeal in NCLAT;

• Almost of the powers of the Company Law Board under the Companies Act, 1956/2013.

• All the powers of BIFR for revival and rehabilitation of sick industrial companies;

• Power of High Court in the matters of mergers, demergers, amalgamations, winding up, etc.;

• Power to order repayment of deposits accepted by Non-Banking Financial Companies

• Power to wind up companies;

• Power to Review its own orders.



NOW: PROCEDURE

                                                   Institution of Appeals – Procedure

Every appeal to the Appellate Tribunal shall be in English and where it is in some other language, a copy of English Translation of appeals shall be attached and;

Fairly and legibly type – written or printed in double spacing on one side of standard paper with an inner margin of about four centimetres, width on top and with a right margin of 2.5 CM, duly paginated and indexed.

Appeal shall be divided into paragraph and shall be numbered consecutively and each paragraph shall contain as nearly as may be, a separate fact or allegation or point.

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 subsequent proceedings in the same appeal.

                                                       Manner of Presentation of Appeals

Any person who is aggrieved by the order of National Company Law Tribunal can file an Appeal before the NCLAT in Form No. – NCLAT – 1 in triplicate by the appellant / petitioner / respondent, as the case may be, in person or by his AR with fees of Rs. 5000/- (Five Thousands) Points should be kept in mind while filing of an Appeal;

Every appeal shall be accompanied by a certified copy of the impugned order.

 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.

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

 In the pending matters, all other applications shall be presented after serving copy thereof in advance on the opposite side or his advocate or AR.

 The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filed along with Memorandum of Appeal.

Endorsement and verifications;

At the foot of the every appeal or pleading there shall appear the name and signature of the AR and every appeal or pleading shall be signed and verified by the party concerned in the manner provided by the rules.

Endorsement and scrutiny of petition or appeal or document;

 The person in charge of the filing counter shall immediately on receipt of appeal or documents 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 stamped affixed on the first page of the copies and enter the particulars of the all such documents in the register after duly filing and assign a diary number which shall be entered below the date stamp and thereafter cause it to be sent for scrutiny.

 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 failure to comply within seven days from the date of return, the same shall be placed before the registrar who may pass appropriate order.

 The registrar may for sufficient cause return the said documents for ratification or amendments to the party filing the same.

 Where 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.

Production of authorisation for and on behalf of an association;

Where an appeal purported to be instituted by or on behalf of association, the person who sign or verify 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 registrar may at any time call upon the party to produce such further materials as he deemed fit for satisfying himself about due authorisation:

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

FEE

SCHEDULE OF FEES
Sr No.	Section of Companies Act, 2013 / Rules	Nature of Appeal	Fees (in Rs)
1	Section 218(3)	Protection of Employee during investigation	1000/-
2	Section 421(1)	Appeals to National Company Law Appellate Tribunal	5000/-

FORMS

Sr. N	Forms	Descriptions
1	NCLAT - 1	Memorandum of appeal preferred under section 421 of the Companies Act, 2013
2	NCLAT - 2	Interlocutory Applications; Every interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appalled against or extension of time prayed for in pending matter shall be in FORM NCLAT – 2 and the requirement prescribed in that behalf shall be complied with by the applicant, besides filing an affidavit supporting the applications.
3	NCLAT - 3	Application for Grant of Inspection; 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.
4	NCLAT - 4	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	NCLAT - 5	Affidavit of illiterate, visually Challenged Person; Where an affidavit sworn or affirmed by any person who appear 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 attestor.
6	NCLAT - 6	Suo motu summoning of documents; Notwithstanding any thing contained in this rule, the appellate tribunal may, suo motu, issue summons for production of public documents or other documents in the custody of a public offer in form NCLAT - 6
7	NCLAT - 7	Recording of Deposition
8	NCLAT - 8	Grant of Discharge certificate
9	NCLAT - 9	Register of SLP/Appeal

Procedure of Appeals before NCLAT.
Any aggrieved person can file an appeal before the National Company Law Appellate Tribunal against the order of NCLT.
First of all we have to understand the power and jurisdictions of NCLT before institutions of Appeal in NCLAT;
• Almost of the powers of the Company Law Board under the Companies Act, 1956/2013.
• All the powers of BIFR for revival and rehabilitation of sick industrial companies;
• Power of High Court in the matters of mergers, demergers, amalgamations, winding up, etc.;
• Power to order repayment of deposits accepted by Non-Banking Financial Companies
• Power to wind up companies;
• Power to Review its own orders.




Institution of Appeals – Procedure
Every appeal to the Appellate Tribunal shall be in English and where it is in some other language, a copy of English Translation of appeals shall be attached and;
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, duly paginated and indexed.
Appeal shall be divided into paragraph and shall be numbered consecutively and each paragraph shall contain as nearly as may be, a separate fact or allegation or point.
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 subsequent proceedings in the same appeal.
Manner of Presentation of Appeals
Any person who is aggrieved by the order of National Company Law Tribunal can file an Appeal before the NCLAT in Form No. – NCLAT – 1 in triplicate by the appellant / petitioner / respondent, as the case may be, in person or by his AR with fees of Rs. 5000/- (Five Thousands)  
 Points should be kept in mind while filing of an Appeal;
Every appeal shall be accompanied by a certified copy of the impugned order.
 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.

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

 In the pending matters, all other applications shall be presented after serving copy thereof in advance on the opposite side or his advocate or AR.

 The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filed along with Memorandum of Appeal.
Endorsement and verifications;
At the foot of the every appeal or pleading there shall appear the name and signature of the AR and every appeal or pleading shall be signed and verified by the party concerned in the manner provided by the rules.
Endorsement and scrutiny of petition or appeal or document;
 The person in charge of the filing counter shall immediately on receipt of appeal or documents 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 stamped affixed on the first page of the copies and enter the particulars of the all such documents in the register after duly filing and assign a diary number which shall be entered below the date stamp and thereafter cause it to be sent for scrutiny.

 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 failure to comply within seven days from the date of return, the same shall be placed before the registrar who may pass appropriate order.

 The registrar may for sufficient cause return the said documents for ratification or amendments to the party filing the same.

 Where 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.
Production of authorisation for and on behalf of an association;
Where an appeal purported to be instituted by or on behalf of association, the person who sign or verify 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 registrar may at any time call upon the party to produce such further materials as he deemed fit for satisfying himself about due authorisation:
Provided further that it shall set out the list of members for whose benefit the proceeding are instituted.
FEE
SCHEDULE OF FEES
Sr No. Section of Companies Act, 2013 / Rules Nature of Appeal Fees (in Rs)
1
Section 218(3) Protection of Employee during investigation
1000/-

2 Section 421(1) Appeals to National Company Law Appellate Tribunal 5000/-

FORMS
Sr. N Forms Descriptions
1 NCLAT - 1 Memorandum of appeal preferred under section 421 of the Companies Act, 2013
2 NCLAT - 2 Interlocutory Applications;

Every interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appalled against or extension of time prayed for in pending matter shall be in FORM NCLAT – 2 and the requirement prescribed in that behalf shall be complied with by the applicant, besides filing an affidavit supporting the applications.

3 NCLAT - 3 Application for Grant of Inspection;

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.
4 NCLAT - 4 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 NCLAT - 5 Affidavit of illiterate, visually Challenged Person;

Where an affidavit sworn or affirmed by any person who appear 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 attestor.
6 NCLAT - 6 Suo motu summoning of documents;

Notwithstanding any thing contained in this rule, the appellate tribunal may, suo motu, issue summons for production of public documents or other documents in the custody of a public offer in form NCLAT - 6
7 NCLAT - 7 Recording of Deposition
8 NCLAT - 8 Grant of Discharge certificate
9 NCLAT - 9 Register of SLP/Appeal

Indian Depository Receipt and Its Procedure

 Meaning

An Indian Depository Receipt (IDR) is a financial instrument denominated in Indian Rupees in the form of a depository receipt created by a Domestic Depository (custodian of securities registered with the Securities and Exchange Board of India) against the underlying equity of issuing company to enable foreign companies to raise funds from the Indian securities Markets.

(In layman language; it’s a way of subscribing of foreign security by Indians entity or individuals)

Conditions to be complied with

1.     Its pre-issue paid-up capital and free reserves are at least US$ 50 million and;

2.     Minimum average market capitalization during the last three years in its parent country of at least US$ 100 million;

3.     Continuously trading on a stock exchange in its parent or home country (the country of incorporation of such company) for at least three immediately preceding years;

4.      Track record of distributable profits for at least three out of immediately preceding five years;

5.     It fulfils such other eligibility criteria as may be laid down by the Securities and Exchange Board of India from time to time in this behalf.

Procedure to be followed for issue of IDRs

Issuing company shall follow the following procedure for making an issue of IDRs:

Issuing company shall, obtain the necessary approvals or exemptions from the appropriate authorities from its incorporating Country.

Prior written approval from the Securities and Exchange Board of India on an application made in this behalf for issue of IDRs along with the issue size.

An application shall be made to the SEBI along with draft prospectus at least ninety days prior to the opening date of the IDRs issue.

  

Issuing Company shall file a Due Diligence Report to SEBI through a Merchant Banker.

The Securities and Exchange Board of India may, within a period of thirty days of receipt of an application, call for such further information, and explanations, as it may deem necessary, for disposal of such application and shall dispose the application within a period of thirty days of receipt of further information or explanation.

If within a period of sixty days from the date of submission of application or draft prospectus, the Securities and Exchange Board of India specifies any changes to be made in the draft prospectus, the prospectus shall not be filed with the Securities and Exchange Board of India or Registrar of Companies unless such changes have been incorporated therein.

The issuing company shall on approval being granted by the Securities and Exchange Board of India to an application, pay to the Securities and Exchange Board of India an issue fee as may be prescribed from time to time by the Securities and Exchange Board of India.

The issuing company shall file a prospectus, to the SEBI and ROC, New Delhi before such issue,

(Certified by two authorized signatories of the issuing company, one of whom shall be a whole-time director and other the Chief Financial Officer stating the particulars of the resolution of the Board by which it was approved)

The prospectus to be filed with the Securities and Exchange Board of India and the Registrar of Companies, New Delhi shall contain the prescribed particulars and shall be signed by all the whole-time directors of the issuing company, and the Chief Financial Officer.

Issuing company shall appoint

An overseas custodian bank,

A Domestic Depository and a Merchant Banker for the purpose of issue of IDRs.

Issuing company may appoint underwriters registered with the Securities and Exchange Board of India to underwrite the issue of IDRs.

Issuing company shall deliver the underlying equity shares or cause them to be delivered to an Overseas Custodian Bank and the said bank shall authorize the domestic depository to issue IDRs.

Issuing company shall obtain in-principle listing permission from one or more stock exchanges having nationwide trading terminals in India.

 Content of prospectus or letter of offer

General information	Name and address of the registered office of the company; Name and address of the Domestic Depository, the Overseas Custodian Bank with the address of its office in India, the Merchant Banker, the underwriter to the issue and any other intermediary which may be appointed; Names and addresses of Stock Exchanges where applications are made or proposed to be made for listing of the IDRs; Names and addresses of Stock Exchanges where applications are made or proposed to be made for listing of the IDRs; Provisions relating to punishment for fictitious applications; Statement or declaration for refund of excess subscription; Declaration about issue of allotment letters or certificates or IDRs within the stipulated period; a.      Date of opening of issue b.     Date of Closing of Issue Declaration by the Merchant Banker with regard to adequacy of resources of underwriters to discharge their respective obligations, in case of being required to do so; Statement by the Issuing company that all moneys received out of issue of IDRs shall be transferred to a separate domestic bank account, name and address of the bank and the nature and number of the account to which the amount shall be credited; The details of proposed utilization of the proceeds of the IDR issue.
Capital Structure of the Company	Authorized, Issued Subscribed and paid-up capital of issuing company
Terms of the issue	Rights of the IDR holders against the underlying securities; Details of availability of prospectus and forms, i.e., date, time, place etc.; Amount and mode of payment seeking issue of IDRs; and Special tax benefits for the Issuing company and holders of IDRs in India.
Particulars of Issue	The objects of the issue; The cost of the Project, if any; and The means of financing the projects, if any including contribution by promoters
Company, Management and Project	Main objects, history and present business of the company; Promoters or Promoter group and their background. If there are no identifiable promoters, the names, addresses and other particulars as may be specified by the Securities and Exchange Board of India of all the persons who hold 5% or more equity share capital of the company shall be disclosed; The subsidiaries of the company, if any; The particulars of the Management or Board ; The location of the project, if any; The details of plant and machinery, infrastructure facilities, technology etc., where applicable; Schedule of implementation of project and progress made so far, if applicable; Nature of product(s), consumer(s), industrial users; The particulars of legal, financial and other defaults, if any; Risk factors to the issue as perceived; and Consent of the Merchant Bankers, Overseas Custodian Bank, the Domestic Depository and all other intermediaries associated with the issue of IDRs. The information, as may be specified by the Securities and Exchange Board of India, in respect of listing, trading record or history of the Issuing company on all the stock exchanges, whether situated in its parent country or elsewhere.
Report	A report by the statutory auditor of the Issuing company, in such form as may be specified by the Securities and Exchange Board of India Audited financial statements of the Issuing company in respect of three financial years immediately preceding the date of prospectus;
Other Information	The Minimum subscription for the issue; The fees and expenses payable to the intermediaries involved in the issue of IDRs; The declaration with regard to compliance with the Foreign Exchange Management Act, 1999
Inspection of Documents	The Place at which inspection of the offer documents, the financial statements and auditor's report thereof shall be allowed during the normal business hours; and any other information as specified by the Securities and Exchange Board of India or the Income-tax Authorities or the Reserve Bank of India or other regulatory authorities from time to time.

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