RIGHT TO LEGAL REPRESENTATION BEFORE NCLT AND NCLAT

[DR.MARIAPPAN GOVINDARAJAN]

Section 432 of the Companies Act, 2013 provides - "A party to any proceeding or appeal before the Tribunal or the Appellate Tribunal, as the case may be, may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any other person to present his case before the Tribunal or the Appellate Tribunal, as the case may be".

Section 2(17) defines the term 'Chartered Accountant' as a chartered accountant as defined in clause (b) of sub section (1) of section 2 of Chartered Accountants Act, 1949 (38 of 1949) who holds a valid certificate of practice under sub-section (1) of Section 6 of that Act

By this definition the Chartered Accountant in practice can appear before NCLT and NCLAT.

For 'company secretary' there are two definitions - one under Section 2(24) as 'Company Secretary' and Section 2(25) as 'Company Secretary in practice'.

Section 432 mentions only 'company secretary' and as such we have to take the definition of 'company secretary' under Section 2(24) and not 2(25).

My assumption is Company Secretary in employment can only appear before NCLT and NCLAT. Company Secretary in practice cannot appear before NCLT and NCLAT - Whether my assumption is correct?

For 'Cost Accountant' there is only definition under Section 2(28) which defines as a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959).

There is no definition including practising cost accountant. The Companies (Amendment) bill, 2016 proposes to substitute the present Section 2(28) for the new one - 'Cost Accountant' means a cost accountant as defined in clause (b) of sub section 2 of the Cost and Works Accountants Act, 1959 and who holds a valid certificate of practice under sub-section (1) of Section 6 of the Act.

My assumption is Cost Accountant in employment can only appear before NCLT and NCLAT. Cost Accountant in practice cannot appear before NCLT and NCLAT till the amendment of Companies (Amendment) Bill, 2016 comes into effeect. - Whether my assumption is correct?

AI Summary

Right to legal representation: parties may authorise professionals or any authorised person to appear before the tribunal.
Section 432 allows a party to proceedings before the Tribunal or Appellate Tribunal to appear in person or to authorise one or more chartered accountants, company secretaries, cost accountants, legal practitioners or any other person to present its case. Definitions of these professionals-particularly distinctions between members in employment and practising members-and a proposed amendment regarding cost accountants inform whether practising company secretaries or cost accountants may appear. In practice, a company must formally authorise any representative to appear.