How to make an application to Tribunal where company has been incorporated by furnishing false or incorrect info or by any fraudulent action (Section 7(7) of Companies Act, 2013).

 

Procedural Aspects:-

1. Issue Notice of Board Meeting

Issue the Notice of Board Meeting as per Section 173 (3) of the Companies Act, 2013 & Secretarial Standard (SS-1) issue by ICSI atleast seven days before the Board Meeting with the following agenda:

– To consider In- Principal approval for Correction of Information wrongly furnished under section 7 (Incorporation of Company) of Companies Act, 2013

– To authorise Company Secretary in practice/ practising Chartered Accountant/ Practising Cost Accountant to enter appearance (Rule 45(2) of NCLT Rules, 2016)

2. Hold the Board Meeting

Hold the Board Meeting and pass all the resolutions mentioned in Agenda.

3. An application shall be filled in Form No. NCLT-1 together with the particulars contained inAnnexure-B

Every application filed under sub rule (1) shall also set out the following particulars (Rule 66(2) Of NCLT Rules, 2016):-

– Name of the company and other details including date of incorporation, name and address of the subscribers, promoters and first directors; and

– details of false or incorrect information or representation or material facts or information suppressed.

– details of such documents in or declaration filed or made for incorporating such company,

– involvement of promoters, subscribers and first directors in committing fraud during the course of incorporation;

The application to be filed in form NCLT-1. The application shall contain the following particulars as given in Annexure- B (Rule 66(1) of NCLT Rules, 2016), namely:-

(i) Copy of Memorandum and Articles of Association.

(ii) Document in proof of false or incorrect information or fraudulent action

(iii) Affidavit verifying the petition.

(iv) Bank draft evidencing payment of application fee.

(v) Memorandum of appearance with copy of the Board’s Resolution or the executed vakalatnama, as the case may be.

4. Order of Tribunal

The Tribunal may pass such orders, as it may think fit in accordance with clauses (a) to (e) of said sub- section (7).

Clauses of Section 7(7):a. pass such orders, as it may think fit, for regulation of the management of the company including changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or

b. direct that liability of the members shall be unlimited; or

c. direct removal of the name of the company from the register of companies; or

d. pass an order for the winding up of the company; or

e. pass such other orders as it may deem fit

After obtaining order from Tribunal, a certified copy of the order shall be filed with the Registrar of Companies (ROC) within thirty days of the receipt of certified copy in e-form INC-28.

FORM NO. NCLT. 1

General Heading for Proceedings

Before the National Company Law Tribunal,

Bench, at ________

In the mater of the Companies Act, 2013

And

In the matter of …… Ltd: (Name of the Company)

Columns required for filing of Original Application/ Reply / Rejoinder / Interlocutory Application or filing of additional documents under directions of the Bench

i. Details of Original Application / Reply / Rejoinder/ Interlocutory Application

Particulars of the Petitioner / Applicant / Respondent and state whether company, whether petitioner or not.

(Name, description, father’s / husband’s name, occupation, capacity, i.e. quashareholder, qua depositor and address)

ii. Jurisdiction of the Bench:

The petitioner declares that the subject-matter of the petition is within the jurisdiction of the Bench

iii. Limitation: (If applicable)

The petitioner / applicant further declares that the petition is within the limitation laid down in section

……. of the Companies Act, 2013 (where applicable)

iv. Facts of the case are given below:

(Concise statement of facts in a chronological order, each paragraph containing as nearly as possible a separate issue, fact or otherwise.)

v. Relief(s) sought.

In view of the facts mentioned above, the petitioner/applicant / respondent prays for the following relief(s):

(Specify below the relief(s) sought explaining the ground for relief(s) and the legal provisions (if any) relied upon)

vi. Particulars of Bank draft evidencing payment of fee for the petition or application made:

Branch of the Bank on which drawn:

Name of the issuing branch:

Demand Draft No………

Date…………..

Amount Rs………..

(Signature/Signature of Authorised signatory)

Date:

Place:

FORM NO. NCLT. 12

(see rule 45)

Memorandum of appearance

To

The Registrar,

National Company Law Tribunal . . . . . . . . . . Bench,

In the matter of . . . . . . . . . . Petitioner.

V.

. . . . . . . . . . Respondent

(C.P. NO . . . . . . . . . . of 20 . . . . . . . . . . )

Sir,

Please take notice that I, AB, Company Secretary in practice/ practising Chartered Accountant/ practising Cost Accountant, duly authorised to enter appearance, and do hereby enter appearance, on behalf of . . . . . . . . . . petitioner/ opposite party/ Registrar/ Regional Director/ Government of . . . . . . . . . . in the above-mentioned petition.

*A copy of the resolution passed by the Board of Directors authorising me to enter appearance and to act for every purpose connected with the proceedings for the said party is enclosed, duly signed by me for identification.

Yours sincerely,

Dated . . . . . . . . . . day of . . . . . . . . . . Address:

Enclosure: as aforesaid.

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