Transfer of Cases to National Company Law Tribunal with format of documents

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Regards

CS DIVYANSHU SAHNI

(COMPANY SECRETARY)

SPICE GROUP

PH: 9871027426

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BACKGROUND

The Ministry of Corporate Affairs has issued a notification stating that pending proceedings under the Companies Act – with some exceptions – shall be transferred from the district and high courts to benches of the National Company Law Tribunal, with effect from December 15.

Transfer of Cases to National Company Law Tribunal

TRANSFER OF PENDING PROCEEDINGS RELATING TO CASES OTHER THAN WINDING-UP:

All proceedings under the Companies Act, 1956 including proceedings relating to arbitration, compromise, arrangements and reconstruction, shall stand transferred to the Benches of the National Company Law Tribunal exercising respective territorial jurisdiction.

Effective date: December 15, 2016

1. Proceedings which are reserved for order for allowing or otherwise shall not be transferred to National Company Law Tribunal.

2.Proceedings which are not reserved for order shall be transferred to National Company Law Tribunal.

PENDING PROCEEDINGS RELATING TO WINDING-UP

All applications and petitions relating to voluntary winding up of companies pending before a High Court on the date of commencement of this rule, shall continue with and dealt with by:

Effective date: January 01, 2016

1. High Court: Till 01.04.2017

2. National Company Law Tribunal: 02.04.2017

TRANSFER OF PENDING PROCEEDINGS OF WINDING-UP ON THE GROUND OF INABILITY TO PAY DEBTS:

Effective Date: 15.12.2016

Where the petition has not been served on to the Respondent under Rule 26 of the Companies (Court) Rules, 1959

Petitions relating to winding up under clause (e) of section 433 of the Companies Act, 1956 pending before a High Court shall stand transferred to the Benches of the National Company Law Tribunal exercising respective territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 or 9 of the Insolvency and Bankruptcy Code, 2016.

Further petitioner shall also submit information forming part of the records transferred, required for admission of the petition under sections 7, 8 or 9 of the Insolvency and Bankruptcy Code, 2016, including details of the proposed insolvency professional to the National Company Law Tribunal within sixty days from date of this notification, failing which the petition shall abate.

However petition shall abate if details regarding proposed Insolvency Professional are not filed within 60 days from 15.12.2016.

Where Board for Industrial and Financial Reconstruction (BIFR)has forwarded an opinion for Winding Up of company , under Section 20 of the Sick Industrial Companies (Special Provisions) Act, 1985 to High Court:

Where no appeal is pending shall be dealt by High Court and will not be transferred to National Company Law Tribunal.

TRANSFER OF PENDING PROCEEDINGS OF WINDING-UP ON THE GROUNDS OTHER THAN INABILITY TO PAY DEBTS:

Where the petition has not been served on to the Respondent under Rule 26 of the Companies (Court) Rules, 1959

Effective Date: 15.12.2016

All petitions filed under clauses (a) and (f) of section 433 of the Companies Act, 1956 pending before a High Court, shall be transferred to the Bench of the National Company Law Tribunal exercising territorial jurisdiction and such petitions shall be treated as petitions under the provisions of the Companies Act, 2013.

TRANSFER OF RECORDS:

Effective Date: 15.12.2016

Relevant records pursuant to the transfer of cases shall also be transferred by the respective High Courts to the National Company Law Tribunal Benches having jurisdiction forthwith over the cases so transferred.

FEES NOT TO BE PAID:

Effective Date: 15^th December 2016

Notwithstanding anything contained in the National Company Law Tribunal Rules, 2016, no fee shall be payable in respect of any proceedings transferred to the Tribunal in accordance with these rules.

FORMAT FOR TRANSFER CASE FROM HIGH COURT TO NCLT

CERTIFIED TRUE COPY OF THE RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF (COMPANY NAME) AT ITS MEETING HELD ON THURSDAY, __^ND DAY OF DECEMBER, 2016 AT (ADDRESS) AT (TIME)

The Board was informed that the Board of Directors in its meeting held on ___^th (Month)’ 2016 had approved the merger of (Company name) and (Company name) with (Company name) effective from(Date). In view of the aforesaid, pursuant to Sections 391 to 394 of the Companies Act, 1956 a Company Application (M) No. 159/2016 was filed before the Hon’ble High Court of Delhi at New Delhi (hereinafter referred to as “the Court”).

It was further informed to the Board that the aforesaid application being (M) No ____ of 2016 was listed for hearing before the Hon’ble High Court at New Delhi on (Date) for seeking directions for dispensation of meetings of the Shareholders and creditors of the Applicant Companies. The Hon’ble Court after hearings the arguments and submissions of the counsel appeared for the Applicant Companies was pleased to reserve the order.

The Chairman further informed that Ministry of Corporate Affairs vide notification dated 7^th December, 2016, has notified the relevant provisions for Compromises, Arrangements and Amalgamations of the Companies Act, 2013 (hereinafter referred to as “the Act”). A copy of the said notification was placed before the Board.

It was further informed that as per the provisions of the said Notification dated 7^th December, 2016 the jurisdiction for approving the merger /amalgamation under section 233 of the Companies Act lies with the Central Government and the powers have since been delegated to the Regional Director vide notification dated 19^th December 2016.

In view of the above, the Company Application (M) No. _____/2016 filed with the Hon’ble High Court of Delhi at New Delhi under Sections 391 to 394 of the Companies Act, 1956 has become infructuous.

It was therefore decided to withdraw the Company application (M) No.____/2016 filed with the Hon’ble High Court of Delhi under section 391 to 394 of the Companies Act 1956 and file a new application with the Central Government (power have been delegated to Regional Director vide notification dated 19^th December 2016) under Section 233 of the Act.

The Board discussed the matter and thereafter following resolution was passed unanimously:

“RESOLVED THAT consent of the Board be and is hereby accorded to withdraw the Company Application (M) No. ______2016 as filed with the Hon’ble High Court of Delhi at (State name) in the matter of Scheme of Amalgamation of (COMPANY NAME) referred as “Transferor Company No. 1” and (COMPANY NAME) referred as “Transferor Company No. 2” with (COMPANY NAME) referred as “Transferee Company” and their respective shareholders and creditors, if any.

“RESOLVED FURTHER THAT (Authorised person) of the Company be and are hereby severally authorized to do all such acts, deeds, things etc. in relation to withdrawing the Company Application (M) No. ____/2016 from the Hon’ble High Court of Delhi at (State name) in the matter of Scheme of Amalgamation of (COMPANY NAME) referred as “Transferor Company No. 1” and (COMPANY NAME) referred as “Transferor Company No. 2” (COMPANY NAME) referred as “Transferee Company” and their respective shareholders and creditors, if any.

RESOLVED ALSO THAT the Common Seal be affixed, if required, on any document to be executed in connection with the above resolution, in accordance with the provisions contained in the Articles of Association of the Company”

CERTIFIED TO BE TRUE COPY

For & on behalf of the Board of

(COMPANY NAME)

SIGNATURE

While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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