SERVICE OF PROCESS – NCLAT


In this post we will discuss service of process and appearance of respondent and objections. These provisions are given in Part – VII of National Company law Appellate Tribunal Rules, 2016 which consist of rules 48 to 54.

Issue of notice

According to sub – rule (1) of Rule 48 of NCLAT Rules, 2016 where notice of an appeal or petition or interlocutory application is issued by the Appellate Tribunal, following documents shall be served along with the notice on the other side –

  • copies of the appeal or petition or interlocutory order;
  • the affidavit in support thereof; and
  • if so ordered by the Appellate Tribunal the copy of other documents filed therewith, if any.

According to sub – rule (2) of rule 48, the copies of the documents shall show –

  • the date of presentation of the appeal or interlocutory application and
  • the name of the authorised representative, if any, of such party
  • full address of such party for service and the interim order, if any, made thereon.

According to sub – rule (3) of rule 48, the Appellate Tribunal may order for issuing notice in appropriate cases. It may and also permit the party concerned for service of said notice on the other side by Dasti (by hand delivery). In such case, the party so permitted shall deliver the notice and file affidavit of service with proof.

Summons

According to section 49, summon or notice may be ordered to be by private services. Such summons or notice shall be served by the appellant or applicant or petitioner as the case may be. They shall arrange to serve the copy of all appeals or petitions or applications by registered post or courier service. After service they shall file affidavit of service with its proof of acknowledgement before the date fixed for hearing.

There is provision for service of such documents in advance before such order. In that case, they shall file affidavit of service with its proof of acknowledgement before the Tribunal.

Issue of fresh notice

According to sub – rule (1) of rule 50, it is possible that a notice issued under rule 48 (in my view, there is clerical error in notification published in official gazette, which published it as 46) is returned unserved. In such case, the fact of return of unserved notice and the reason thereof shall be notified immediately on the notice board of the Registry.

According to sub – rule (2) of rule 50, the applicant or petitioner or his authorised representative shall within seven days from the date of the notification, take steps to serve the notice afresh.

Consequence of failure to take steps for issue of fresh notice

According to rule 51, the applicant or petitioner or appellant, as the case may be, shall take necessary steps within the period as ordered by the Appellate Tribunal from the date of return of the notice on the respondent(s). On failure in taking such steps, the Registrar shall post the case before the Appellate Tribunal for further directions or for dismissal for non-prosecution.

Entries regarding service of notice or process

According to rule 52, the Judicial Section of the Registry shall record in the column in the order sheet ‘Notes of the Registry’. Following details shall be record following details regarding completion of service of notice –

  • Date of issue of notice;
  • Date of service;
  • Date of return of notice, if unserved;
  • steps taken for issuing fresh notice; and
  • date of completion of services etc.

Non-appearance of respondent and consequences

According to rule 53, where the respondent does not appear before the date fixed for hearing, the Appellate Tribunal may proceed to hear the appeal ex – parte and pass final order on merits. The Appellate Tribunal before passing such order shall ensure that there was effective service of summons or notice on him.

According to proviso to rule 53, it is open to the Appellate Tribunal to seek the assistance of any  authorised representative as it deems fit in case the matter involves intricate and substantial questions of law having wide ramifications.

Filing of objections by respondent, form and consequences

According to sub – rule (1) of rule 54, The Appellate Tribunal may direct respondent to file objections or counter. The respondent shall file objections or counter within the time allowed by the Appellate Tribunal.

According to sub – rule (2) of rule 54, the objections or counter shall be verified in same manner as an appeal. Wherever new facts are sought to be introduced with the leave of the Appellate Tribunal for the first time, the same shall be affirmed by a supporting affidavit.

According to sub – rule (3) of rule 54, the respondent, if permitted to file objections or counter in any proceeding shall also file three copies thereof after serving copies of the same on the appellant or petitioner or their authorised representatives, as the case may be.

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