ROC ANNUAL COMPLIANCE

ABOUT REPRESENTATION BEFORE RBI, SEBI, NCLT, SAT, FIPB, MCA, ROC, DRT

RBI

The Reserve Bank of India (RBI) is the central bank of India, which was established on April 1, 1935, under the Reserve Bank of India Act. The Reserve Bank of India uses monetary policy to create financial stability in India, and it is charged with regulating the country’s currency and credit systems.

The RBI was originally set up as a private entity but was nationalized in 1949. The reserve bank is governed by a central board of directors appointed by the national government. The government has always appointed the RBI’s directors, and this has been the case since the bank became fully owned by the government of India as outlined by the Reserve Bank of India Act. Directors are appointed for a period of four years.

SEBI

The Securities and Exchange Board of India, also referred to as the SEBI they are the governing body for financial regulations in India. The SEBI is responsible for maintaining a stable investment and financial market for India. The board was established in 1988 but not given any regulating abilities until 1992 when the Securities and Exchange Board of India Act passed. The SEBI headquarters are in Mumbai, and the board is headed by eight members. The SEBI is a corporate structure with five departments that have a department head. It has two advisory committees that are responsible for primary and secondary markets. These two committees advise the Securities and Exchange Board of India on regulating intermediaries, issuing of securities in the primary market, disclosure requirements of companies, any changes in legal framework, and regulating and developing the secondary stock exchange. While the committees provide advice, they cannot enforce any changes.

NCLT

The Central Government has constituted National Company Law Tribunal (NCLT) under section 408 of the Companies Act, 2013 (18 of 2013) w.e.f. 01st June 2016.
It is a quasi-judicial authority incorporated for dealing with corporate disputes that are of civil nature arising under the Companies Act. However, a difference could be witnessed in the powers and functions of NCLT under the previous Companies Act and the 2013 Act. The constitutional validity of the NCLT and specified allied provisions contained in the Act were re-challenged. Supreme Court had preserved the constitutional validity of the NCLT, however, specific provisions were rendered as a violation of the constitutional principles.
NCLT works on the lines of a normal Court of law in the country and is obliged to fairly and without any biases determine the facts of each case and decide with matters in accordance with principles of natural justice and in the continuance of such decisions, offer conclusions from decisions in the form of orders. The orders so formed by NCLT could assist in resolving a situation, rectifying a wrong done by any corporate or levying penalties and costs and might alter the rights, obligations, duties or privileges of the concerned parties. The Tribunal isn’t required to adhere to the severe rules with respect to appreciation of any evidence or procedural law.

SAT

Securities Appellate Tribunal is a statutory body established under the provisions of Section 15K of the Securities and Exchange Board of India Act, 1992 to hear and to dispose appeals against orders passed by the Securities and Exchange board of India or by an adjudicating officer under the Act. The Central Government may, by notification establish an Appellate Tribunal known as Securities Appellate Tribunal to exercise the jurisdiction, powers and authority conferred on such tribunal under the SEBI Act, 1992 or any other law for time being in force. The Central Government has set up a Tribunal at Mumbai.

Securities Appellate Tribunal is a statutory body established under the provisions of Section 15K of the Securities and Exchange Board of India Act, 1992 to hear and to dispose appeals against orders passed by the Securities and Exchange board of India or by an adjudicating officer under the Act.

FIPB

Foreign Investment Promotion Board (FIPB) has been set up by the government of India in order to increase the flow of foreign direct investments into the country. By doing this, Foreign Investment Promotion Board (FIPB) has been able to give a major boost to the Indian economy.

The main objective of Foreign Investment Promotion Board (FIPB) is to encourage foreign direct investment into the country by taking up activities that promote investment. The chairman of Foreign Investment Promotion Board (FIPB) is the Secretary Industry of the Department of Industrial Promotion and Policy, government of India.

MCA

MCA regulates corporate affairs in India through the Companies Act, 1956, 2013 and other allied Acts, Bills and Rules. MCA also protects investors and offers many important services to stakeholders. This site is your gateway to all services, guidance, and other corporate affairs related information.

ROC

The Registrar of Companies (ROC) is an office under the Ministry of Corporate Affairs (MCA), which is the body that deals with the administration of companies and Limited Liability Partnerships in India. At present, 22 Registrar of Companies (ROCs) is operating in all the major states. However, states like Tamil Nadu and Maharashtra, have more than one ROC. As per section 609 of the Companies Act, 1956, the ROCs are tasked with the principal duty of registering both the companies and LLPs across the states and the union territories.

The Registrar of Companies also certifies that LLPs (Limited Liability Partnerships) comply with the legal requirements contained in the Companies Act, 2013.

Registrar of Companies maintains a registry of records concerning companies which are registered with them and allows the general public in accessing this information on payment of a stipulated fee. The Central Government preserves administrative control over the Registrar of Companies with the help of Regional Directors. As of today, there are seven Regional Directors, supervising the operations of ROCs within their relevant regions.

DRT

Keeping in line with the international trends on helping financial institutions recover their bad debts quickly and efficiently, the Government of India has constituted thirty three Debts Recovery Tribunals and five Debts Recovery Appellate Tribunals across the country.

The Debts Recovery Tribunal (DRT) enforces provisions of the Recovery of Debts Due to Banks and Financial Institutions (RDDBFI) Act, 1993 and also Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, 2002.

Under the Recovery of Debts Due to Banks and Financial Institutions (RDDBFI) Act, 1993 banks approach the Debts Recovery Tribunal (DRT) whereas, under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, 2002 borrowers, guarantors, and other any other person aggrieved by any action of the bank can approach the Debts Recovery Tribunal (DRT).

REPRESENTATION

One can file a complaint before the Banking Ombudsman if the reply is not received from the bank within a period of one month after the bank concerned has received one’s complaint, or the bank rejects the complaint, or if the complainant is not satisfied with the reply given by the bank.

The Banking Ombudsman can receive and consider any complaint relating to the following deficiency in banking services:

  • non-payment or inordinate delay in the payment or collection of cheques, drafts, bills etc.;
  • non-acceptance, without sufficient cause, of small denomination notes tendered for any purpose, and for charging of commission in respect thereof;
  • non-acceptance, without sufficient cause, of coins tendered and for charging of commission in respect thereof;
  • non-payment or delay in payment of inward remittances ;
  • failure to issue or delay in issue of drafts, pay orders or bankers’ cheques;
  • non-adherence to prescribed working hours ;
  • failure to provide or delay in providing a banking facility (other than loans and advances) promised in writing by a bank or its direct selling agents;
  • delays, non-credit of proceeds to parties’ accounts, non-payment of deposit or non-observance of the Reserve Bank directives, if any, applicable to rate of interest on deposits in any savings, current or other account maintained with a bank ;
  • complaints from Non-Resident Indians having accounts in India in relation to their remittances from abroad, deposits and other bank related matters;
  • refusal to open deposit accounts without any valid reason for refusal;
  • levying of charges without adequate prior notice to the customer;
  • Non-adherence to the instructions of Reserve Bank on ATM / Debit Card and Prepaid Card operations in India by the bank or its subsidiaries
  • Non-adherence by the bank or its subsidiaries to the instructions of Reserve Bank on credit card operations
  • Non-adherence to the instructions of Reserve Bank with regard to Mobile Banking / Electronic Banking service in India by the bank
  • Non-disbursement or delay in disbursement of pension (to the extent the grievance can be attributed to the action on the part of the bank concerned, but not with regard to its employees);
  • Refusal to accept or delay in accepting payment towards taxes, as required by Reserve Bank/Government;
  • Refusal to issue or delay in issuing, or failure to service or delay in servicing or redemption of Government securities;
  • Forced closure of deposit accounts without due notice or without sufficient reason;
  • Refusal to close or delay in closing the accounts;
  • Non-adherence to the fair practices code as adopted by the bank;
  • Non-adherence to the provisions of the Code of Bank’s Commitments to Customers issued by Banking Codes and Standards Board of India and as adopted by the bank ;
  • Non-observance of Reserve Bank guidelines on engagement of recovery agents by banks;
  • Non-adherence to Reserve Bank guidelines on para-banking activities like sale of insurance / mutual fund /other third party investment products by banks
  • Any other matter relating to the violation of the directives issued by the Reserve Bank in relation to banking or other services.

SEBI

It is insulated from direct accountability to the public. The only mechanisms to check its power are a Securities Appellate Tribunal, which consists of a panel of three judges, and a direct appeal to the Supreme Court of India. Fortunately for the people of India, the SEBI has been mostly benevolent in its use of its authority, issuing strong systematic reforms rapidly and aggressively with its unchecked power. For example, after the Great Recession of 2008 and the Satyam Fiasco, the SEBI was able to quickly take regulatory steps to mitigate the effects of these problems, stabilize the economy and take drastic steps to make sure such situations never occurred again.

NCLT

APPEARANCE OF AUTHORISED REPRESENTATIVE

According to Section 432 of the Companies Act, 2013, a party to any proceeding or appeal before the Tribunal or the Appellate Tribunal, as the case may be, may –

o either appear in person or

o 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.

 

Rule 63 of the National Company Law Appellate Tribunal Rules, 2016 repeat same statement –

Subject to provisions of Section 432 of the Act, a party to any proceedings or appeal before the Appellate Tribunal may either appear in person or authorise one or more chartered accountants or company secretaries of cost accountants or legal practitioners of any other person to present his case before the Appellate Tribunal.

SAT

Appearance before SAT may be either in person or through authorized person being a Chartered Accountant, Company Secretary, Cost Accountant or Legal Practitioner. Any person aggrieved by any decision or order of the SAT can file an appeal to the Supreme Court. The appeal can be filed only on a question of law. The appeal shall be filied within 60 days from the date of receiving a copy of the decision or order of SAT. The Supreme Court may allow a further period of 60 days for making an appeal, if it is satisfied that the applicant was prevented by sufficient cause from filing the appeal within the first 60 days.

FIPB

India’s foreign trade policy has been formulated with a view to invite and encourage FDI in India. The Reserve Bank of India has prescribed the administrative and compliance aspects of FDI. A foreign company planning to set up business operations in India has the following options:

  • investment under automatic route; and
  • investment through prior approval of Government.

MCA

If the court determines that an interest is not represented under this part or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual or a person whose identity or location is unknown. A representative may be appointed to represent several persons or interests.

A representative may act on behalf of the individual represented with respect to any matter arising under this chapter, whether or not a judicial proceeding concerning the trust is pending.

In making decisions, a representative may consider general benefit accruing to the living members of the individual’s family.

ROC

No company can come into existence by itself. It requires a certificate of incorporation issued by the Registrar of Companies after finalization of several statutory requirements. As part of the statutory process, the promoters need to submit several documents to the Registrar of Companies. These documents include Memorandum of Association (MoA), Articles of Association (AoA), the pre-incorporation agreement for appointing directors/ managing directors and the declaration by an authorized person confirming that requirements relating to registration have been adhered to.

After authenticating the documents, the ROC inputs the company’s name in the register of companies and releases the certificate of incorporation. The Registrar together with the certificate of incorporation also issues a certificate of commencement of business. A public limited company is required to get this certificate prior commencing business.

DRT

Appeals against orders passed by Debts Recovery Tribunal (DRT) lie before Debts Recovery Appellate Tribunal (DRAT). There are five Debts Recovery Appellate Tribunal (DRATs) located in the country. One Debts Recovery Appellate Tribunal (DRAT) is located each at Delhi, Allahabad, Mumbai, Chennai and Kolkata. A Debts Recovery Appellate Tribunal (DRAT) conducts circuit sittings in different cities where Debts Recovery Tribunal (DRTs) are located over which it has appellate jurisdiction.

As per section 1(4), the provisions of RDDBFI Act does not apply where the amount of debt due to the bank or financial institution or the consortium of banks and financial institutions is less than Rupees Ten Lakh or any other amount not below Rupees One Lakh, cases where the central government may by notification specify. Thus, in essence, minimum debt which is to be recovered from DRT should not be less than Rupees Ten Lakh. In the case of SARFESAI Act, if the asset has been declared as Non-Preforming Asset (NPA), eligible banks and financial institutions after enforcing security can recover remaining amount under RDDBFI Act which is in excess, of Rupees One Lakh.