PROCEDURE FOR FILING APPEAL BEFORE ‘NCLAT’ UNDER ‘COMPETITION ACT, 2002’

[Mr. M. GOVINDARAJAN]

Appeal

• The appeal under Competition Act, 2002 before the National Company Law Appellate Tribunal is covered under Section 53B of the Act, the Competition Appellate Tribunal (Form and fee for filing an appeal and fee for filing compensation application) Rules, 2009 and the Competition Appellate Tribunal (Procedure) Regulations, 2011.

Who can file Appeal to Appellate Tribunal?

• Section 53B (1) of the Competition Act, 2002 provides that-

• the Central government; or
• the State Government; or
• a local authority; or
• enterprise; or
• any person,

aggrieved by any direction, decision or order referred to in Section 53A (a) may prefer an appeal to the Appellate Tribunal.

Right to legal representation

• Section 53S of the Act provides that a person preferring an appeal to the Appellate Tribunal may either appear in person or authorize one or more Chartered Accountants or Company Secretaries of Cost Accountants or legal practitioners or any of its officers to present his or its case before the Appellate Tribunal;
• The Central Government or a State Government or a local authority or any enterprise preferring an appeal to the Appellate Tribunal may authorize one or more Chartered Accountants or Company Secretaries or Cost Accountants of legal practitioners or any of its officers as its to act as presenting officers and every person so authorized may present the case with respect to any appeal before the Appellate Tribunal;
• The Commission may authorize one or more Chartered Accountants or Company Secretaries or Cost Accountants or legal practitioners or any of its officers to act as its presenting officers and every person so authorized may present the case with respect to any appeal before the Appellate Tribunal.

Authorized representative

• Regulation 2(e) defines the term ‘authorized representative’ as-
  • An individual, in case of individual complaint, sole proprietor or a proprietorship firm;
  • The Karta in case of Hindu Undivided Family;
  • The Managing Director or Director duly authorized by the Board of Directors in case of a company;
  • The President or Secretary in case of association or society;
  • A partner in case of partnership;
  • The Chief Executive Officer of the Co-operative Society or the local authority;
  • The Joint Secretary of the Government of India or a State of Government; or
  • The Chief Executive Officer in case of a statutory authority.

Time limit

• Section 53B (2) provides that every appeal shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central government or the State Government or a local authority or an enterprise or any person .

Delay condonation

• The Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period.

Powers of the Appellate Tribunal

• Section 53-O of the Act provides that the Appellate Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Appellate Tribunal shall have powers to regulate its own procedure including the places at which they shall have their sittings.
• The Appellate Tribunal shall have, for the purposes of discharging its functions under the Competition Act, the same powers as are vested in a civil court under the Code of Civil Procedure Code, 1908 while trying a suit in respect of the following matters-
  • summoning and enforcing the attendance of any person and examining him on oath;
  • requiring the discovery and production of documents;
  • receiving evidence on affidavits;
  • subject to the provisionsof sections 123 and 124 of the Indian Evidence Act, 1872 requisitioning any public record or document or copy of such record or document from any office;
  • issuing commissions for the examination of witnesses or documents;
  • reviewing its decisions;
  • dismissing a representation for default or deciding it ex-parte;
  • setting aside any order of dismissal of any representation for default or any order passed by it ex-parte;
  • any other matter which may be prescribed.

Judicial Proceedings

• Every proceeding before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 and for the purposes of section 196 of the Indian Penal Code, 1860 and the Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and chapter XXVI of the Code of Criminal Procedure, 1973.

Rules and Regulations

• The Central Government for the purpose of effecting functioning of the Competition Appellate Tribunal (now ‘National Company Law Appellate Tribunal’) made ‘The Compensation Appellate Tribunal (Form and fee for filing an appeal and fee for filing compensation Applications) Rules, 2009.
• The Competition Appellate Tribunal made ‘The Competition Appellate Tribunal (Procedure) Regulations, 2011 since the Appellate Tribunal is given power to regulate its own procedure in conducting the appeal proceedings.

Sitting of the Tribunal

• The National Company Law Board Appellate Tribunal, replacing the Competition Appellate Tribunal is having its sittings at New Delhi and at such places as the Chairperson may by general or special or order direct.

Official seal

• Every notice, order and judgment of the Tribunal shall bear the seal of the Tribunal.
• The Official seal of the Tribunal shall be in the custody of the Registrar.

Functions of Registrar

• Regulation 6 prescribes the functions as Registrar which shall to-
  • receive and register appeals, applications, interlocutory and all other miscellaneous applications relating to such appeals or applications, as the case may be;
  • maintain all records of the Tribunal;
  • represent the Tribunal before the Supreme Court in the event of an appeal under section 53(T) of the Act; and
  • perform such other functions as the Chairperson may, from time to time, direct.

Procedure for appeal before the Appellate Tribunal

• A memorandum of appeal shall be in the prescribed form.
• Every memorandum of appeal presented to the Appellate Tribunal shall be in English.
• In case it is on some other Indian language, it shall be accompanied by a copy transacted in English.
• No appeal, application, document or other papers contained in any language, other than English, shall be accepted by the Appellate Tribunal unless the same is accompanied by a translation thereof in English attested by a translator and countersigned by the party concerned.
• The appeal shall be fairly and legibly typewritten, lithographed or printed in double spacing on one side of standard petition paper with an inner margin of about four centimeters 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.
• Every memorandum of appeal shall be in five copies.

Fees

• Every memorandum of appeal and compensation application shall be accompanied with a fee as detailed below-
  • Fee for appeal
    • If amount of penalty imposed is less than ₹ 20,000/- the fee payable is ₹ 1000/-
    • If amount of penalty imposed is ₹ 20,000/- or more but less than ₹ 1 lakh – the fee payable is ₹ 2,500/-;
    • If the amount of penalty imposed is more than ₹ 1 lakh – The fee payable is ₹ 2,500/- + ₹ 1,000/- for every additional ₹ 1 lakh of penalty or fraction thereof, subject to a maximum of ₹ 3 lakhs.
  • Amount of fee payable in respect of any other appeal against a direction or decision or order of the Commission under the Act shall be ₹ 10,000/-
• The Appellate Tribunal may, to advance the cause of justice and in suitable cases, waive payment of the fee or portion thereof, taking into consideration the economic condition or indigent circumstances of the petitioner or appellant or applicant or such other reason, as the case may be, by an order for reasons to be recorded.

Affidavit

• Every appeal or application supported by an affidavit and a certified copy of the impugned direction, decision or order of the Commission, shall be verified.

Authorized representative

• If a party is represented by an authorized representative, copy of the authorization to act as the authorized representative and the written consent thereto by such authorized representative, shall be appended to memorandum of appeal.

Admission of appeal

• The appeal shall be presented in the Registry or shall be sent by registered post addressed to the Registrar of the Appellate Tribunal.
• If the appeal is found tofound to be in order, it shall be registered by the Registrar
• It shall be given a serial number.
• The appeal registered shall be put for hearing before the Appellate Tribunal with a notice to the appellant.

Issue of notice

• The Tribunal, after hearing the appellant, may either dismiss it summarily or direct issue of notice to all necessary parties or may make such orders as the circumstances of the case may require.
• The Registrar shall issue notice along with the order of the Tribunal and copy of the appeal to all respondents.
• If the appellant desires to withdraw his appeal at any stage prior to the hearing of the appeal, shall make an application to that effect to the Appellate Tribunal.
• Appeal or application, counters, rejoinders, supplemental pleadings or other documents shall be accompanied by four copies thereof for the Tribunal’s record and such additional number of copies thereof for being served on the respondents.
• No pleadings, subsequent to the reply, shall be presented except by the leave of the Tribunal upon such terms as the Tribunal may think fit.

Adjournments

• The Appellate Tribunal may, if sufficient cause is shown at any stage of any proceeding, adjourn the hearing for such time or date as it may consider appropriate provided that in any case, the Tribunal shall not grant more than three adjournments during the course of the whole proceeding.

ex parte order

•             If a party to the proceeding does not appear on the day fixed for hearing, the Tribunal may continue with the proceedings in the absence of such party.

Inspection of records

• The Registrar shall maintain the records of the Appellate Tribunal and no record or document filed in any case or matter shall be allowed to be taken out of the custody of the Tribunal without the leave of the Tribunal.
• A party to the proceeding is allowed to inspect or obtain copies of pleadings and other documents or records in the proceeding on an application and on payment of fees and charges specified in the rules.
• Inspection shall be allowed in the presence of the Registrar.
• Copies of the proceedings required may be certified as true copies by the Registrar.
• Every authorized officer, not below the rank of Under Secretary to the Central Government or the State Government or the Competition Commission of India shall be entitled free of charge of inspection of the file of the proceedings of the Appellate Tribunal at all reasonable times.
• The Appellate Tribunal shall provide such copies or extracts to the aforesaid officers, as they may request in writing.

Order of Appellate Tribunal

• Every order or judgment of the Appellate Tribunal shall be signed and dated by the Chairperson and Members who have heard the case.
• The Chairperson or a Member who dissents with the final conclusion shall record the reasons separately under the signatures and date.
• In case of any doubt as to the interpretation to these regulations, the matter shall be placed before the Chairperson who shall have the power to modify, waive and exempt the operation of any of these procedures by specific or general order and for reasons to be recorded in writing.
• Any clerical or arithmetical mistake in any proceeding, amendment of proceeding, declaration or order of the Appellate Tribunal or error may, at any time, be corrected by the Appellate Tribunal either on its own motion or on the application of the party.

Procedure for claim of compensation

• The Central Government or a State Government or a local authority or any enterprise or any person may make an application to the Tribunal to adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Tribunal in an appeal against any finding of the Commission and to pass an order for the recovery of compensation from any enterprise for any loss or damage shown to have been suffered, by the Central Government or a State Government or a local authority or any enterprise or any person as a result of any contravention of the provisions having been committed by the enterprise.
• Where any loss or damage is caused to numerous persons having the same interest, one ormore such persons may, with the permission of the Tribunal, make an application for permission of the Tribunal make an application for and on behalf of, or for the benefit of, the persons so interested and thereupon, the provisions of rule 8 of order 1 of the First Schedule to the Code of Civil Procedure, shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the application before the Tribunal and the order the Tribunal thereon.
• An application may be made for compensation before the Tribunal only after either the Commission or the Tribunal on appeal has determined in a proceeding before it that violation of the provisions of the Act has taken place, or if provisions of Sec.42A or Sec. 53Q(2) of the Act are attracted.
• Every application made shall be accompanied by the findings of the Commission.
• The fee payable shall be as detailed below:

Amount of compensation claimed	Amount of fees payable
Less than One lakh rupees	Rs.1,000/-
More than One lakh rupees	Rs.1,000/- plus ₹ 1,000/- for every additional one lakh rupees of compensation claimed or fraction thereof, subject to a maximum of ₹ 3,00,000/-

 

• Such fee may be remitted in the form of Demand Draft drawn in favor of “Accounts Officer, Ministry of Corporate Affairs” payable at New Delhi.
• The Tribunal may, to advance the cause of justice and in suitable cases, waive payment of fee or portion thereof, taking into consideration the economic condition or indigent circumstances of the petitioner or the appellant or applicant or such other reason, as the case may be, by an order for reasons to be recorded.
• The Tribunal may, after an inquiry made into the allegations mentioned in the application pass an order directing the enterprise to make payment to the applicant, of the amount determined by it as reasonable from the enterprise as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions having been committed by such enterprise.
• The inquiry shall be for the purpose of determining the eligibility and quantum of compensation due to a person applying for the same and not for examining afresh the findings of the Commission or the Tribunal on whether any violation of the Act has taken place.
• The Tribunal may obtain the recommendations of the Commission before passing an order of compensation.

Check list

•  The check list for filing appeals under Competition Act, 2002 before the National Company Law Appellate Tribunal is as follows-

Language & Format

• Appeal stitched together in paper book form;
• Language of appeal – English;
• If in some other language – should be accompanied by a copy of translated version in English;
• Fairly and legible type-written or printed;
• Double spacing;
• On one side of standard paper with inner margin of about 4 cm;
• Width on top& right margin 2.5 cm
• Left margin 5 cm;
• Duly paginated;

Cause Title

• Cause Title to state ‘In the National Company Law Appellate Tribunal’;
• Competition Appeal (AT) No./2017;
• State the provision(s) of law/rule(s) under which the appeal preferred;
• State Case No. and date of impugned order;

Memo of Parties and address for service of summons

• State full name, parentage and following details-
  • the name of the road, street, lane and Municipal Division or ward, Municipal Door and other number of the house;
  • the name of the town or village;
  • the post office, postal district and PIN Code; and
  • any other particular necessary to identify the addressee such as FAX number, mobile number and e-mail address.
• In case party sues or is being sued in a representative character, state the fact at the beginning of the appeal and need not be repeated in the remaining part of the appeal.
• If a company or companies are party to the appeal, the name and details of the person authorized to represent the company.
• The parties shall be numbered consecutively and a separate line should be allotted to the name and description of each party.This number shall not be changed and in the event of death of a party during the pendency of the appeal, his legal heirs or representative(s) should be given sub-numbers.

e.g, if Respondent No. 3 dies and there are four legal heirs, they will be substituted as Respondent No. 3(a), 3(b), 3(c) & 3(d).

• When fresh parties are brought in, they may be numbered consecutively.

Synopsis-cum-chronological list of events

• Appeal memo to contain synopsis and list of dates;

Pleadings

• To be divided into paragraphs and numbered consecutively;
• Each paragraph to contain as nearly as may be, a separate fact or allegation or point;
• Where saka or other dates are used, state also the corresponding dates of Gregorian Calendar;
• Every interlineations, eraser or correction or deletion should be initialed by the party or his authorized representative.

Fee for appeals

• Amount of penalty imposed is-
  • less than ₹ 20,000/- = ₹ 1,000/-
  • Rs.20,000/- or more but less than ₹ 1 lakh = ₹ 2,500/-;
  • ₹ 1 lakh or more = ₹ 2,500/- + ₹ 1,000/- for every additional one lakh of penalty or fraction thereof, subject to a maximum of ₹ 3 lakhs.

Documents to be enclosed

• Every appeal to be accompanied by a certified copy of the impugned order(s) (not photo copy or typed copy).The order is to be incorporated in the paper book immediately after the Appeal Memo;
• All documents filed in the Appellate Tribunal to be accompanied by index in triplicate containing their details;
• Sufficient number of copies of appeal or petition or application should be filed for service on the opposite parties (if not filed, it is required to be filed within a period as indicated by the Hon’ble Appellate Tribunal;

Pending matters

• In pending matters, all applications to be filed after serving copies in advance on the opposite side/his advocate/authorized representative;

Processing Fees

• The required processing fee with required number of envelopes of sufficient size containing the address of the parties to be filed within a period as directed by the Hon’ble Appellate Tribunal;
• Vakaltnama to be filed by lawyer with Court fee of ₹ 3/- and Advocate Welfare Stamp of ₹ 10/- each;
• Copy of information filed before the Competition Commission of India is to be produced.