Rules 39 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Rule 39 lets the Tribunal take evidence by affidavit, allows cross-examination of a deponent on points of conflict (including by video conference), and says every affidavit filed is in Form NCLT-7. Rule 40 limits fresh evidence in cases where the Central Government's Inspector has already investigated the company under Chapter XIV of the Act, and says when the Bench may still allow it.
The Tribunal may direct the parties to give evidence by affidavit (rule 39(1)). Where natural justice needs it, it may order cross-examination of a deponent on the points of conflict, through video conferencing or otherwise, on an application by a party (rule 39(2)). Every affidavit filed is in Form NCLT-7 (rule 39(3)). Under rule 40, parties cannot produce additional evidence they had but did not place before the Inspector during a Chapter XIV investigation, unless the Bench, for reasons recorded, allows it. These rules are read as amended up to the National Company Law Tribunal (Amendment) Rules, 2020 (G.S.R. 80(E), 3 February 2020); neither rule was changed by those amendments. Later amendments should be checked.
Rule 39: production of evidence by affidavit
Rule 39(1): affidavit evidence on direction
The Tribunal "may direct the parties to give evidence, if any, by affidavit". The rule is permissive: it is the Bench that decides whether evidence in a matter goes in by affidavit. Parties preparing a contested petition can get help from our legal dispute resolution team in planning which facts need an affidavit of evidence.
Rule 39(2): cross-examination on the points of conflict
Despite sub-rule (1), where the Tribunal considers it necessary in the interest of natural justice, it may order cross-examination of any deponent on the points of conflict. Two features matter:
- the cross-examination may be through information and communication technology facilities such as video conferencing, or otherwise, as the Tribunal decides; and
- it follows an application moved by any party, so a party that wants to test an affidavit must ask for it.
The rule limits cross-examination to the points of conflict. A party cannot treat it as a general right to question a deponent on everything.
Rule 39(3): every affidavit in Form NCLT-7
"Every affidavit to be filed before the Tribunal shall be in Form No. NCLT.7." Form NCLT-7, marked "see rule 39", is titled Affidavit by way evidence, as printed.
A form-number clash to note. Rule 34(4) prescribes Form NCLT-6 for the affidavit verifying a petition, while rule 39(3) says every affidavit filed is in Form NCLT-7. Form NCLT-6 is headed "General Affidavit Verifying Petition" and Form NCLT-7 "Affidavit by way evidence". The Rules do not reconcile the two sentences, so check which form the Bench's registry expects for each affidavit; see the article on rule 34.
Form NCLT-7: headings as printed
The form carries the heading "as in Form NCLT-4" (the general heading for proceedings), the Company Petition number, and the title Affidavit by way evidence. The deponent states name, parentage, age and residence and affirms that he or she is a director, secretary or other officer of the petitioner company and is duly authorised by it to make the affidavit (a paragraph meant for cases where the petitioner is the company). A second paragraph states that the statements made in the deposition in the paragraphs that follow are true to the deponent's knowledge and are believed to be true. It ends "Solemnly affirmed, etc." with a note that a further paragraph is included when the affidavit is sworn by a person other than a director, agent, secretary or other officer of the company. For how affidavits are titled, attested and annexed, see the article on rules 125 to 130 and our guide on the format and legal requirements of an affidavit.
Rule 40: additional evidence after an investigation
Rule 40(1): the bar and its exceptions
Despite rule 39, parties to proceedings shall not be entitled to produce before the Bench additional evidence, oral or documentary, which was in their possession or knowledge but was not produced before the Inspector appointed by the Central Government to investigate the company's affairs under Chapter XIV of the Act. The Bench may still allow a document to be produced, a witness to be examined or an affidavit to be filed, for reasons to be recorded, in three situations:
- the Bench itself requires the additional evidence, document, witness or affidavit to enable it to pass orders;
- the Bench requires it for any other substantial cause; or
- the Inspector did not give the party sufficient opportunity to adduce evidence.
Rules 40(2) and (3): where and how
The document may be produced or the witness examined before the Bench or before an authority the Bench directs. If the Bench directs an authority, the party must comply and then send the document, the record of the deposition or the record of the evidence to the Bench.
Rule 40(4): the other side's chance to rebut
The Bench makes the additional evidence or document available to the other parties, and they must be afforded an opportunity to rebut its contents.
For the investigation provisions the rule refers to, see our guide to sections 213 to 229. The Rules print no more than the bar and the exceptions above.
At a glance
| Rule | What it says | Who acts |
|---|---|---|
| 39(1) | Evidence may be directed to be given by affidavit | Tribunal |
| 39(2) | Cross-examination on points of conflict, including by video conference | Tribunal, on a party's application |
| 39(3) | Every affidavit in Form NCLT-7 | Deponent |
| 40(1) | No additional evidence withheld from the Inspector, unless allowed for recorded reasons | Bench |
| 40(2)-(3) | Evidence before the Bench or a directed authority, then sent to the Bench | Party |
| 40(4) | Other parties may rebut | Other parties |
An example
Harbor Trading Private Limited is the respondent in a petition where the petitioner's director has filed an affidavit of evidence in Form NCLT-7. The Bench has directed evidence by affidavit. The respondent applies for cross-examination of that director on the points where the two sides' accounts conflict, and asks that it be done by video conference because the director is abroad. Separately, an Inspector investigated Harbor Trading under Chapter XIV; the respondent now wants to file a set of ledgers it held but never gave the Inspector. Rule 40(1) bars this unless the Bench, for recorded reasons, allows it.
What a practitioner checks
- Whether the Bench has directed evidence by affidavit, and which form is being used for each affidavit.
- Whether cross-examination is limited to the points of conflict and has been applied for.
- In a matter that followed an Inspector's investigation, which documents were placed before the Inspector.
- That any permission under rule 40 carries recorded reasons, and the other side has had a chance to rebut.
Need help with evidence in a Tribunal matter?
Evidence on affidavit has to be drafted around the points of conflict, and rule 40 can close doors that were open before the Inspector. For help with affidavits and the case file, speak to our legal dispute resolution team.
Key takeaways
- The Tribunal may direct evidence by affidavit (rule 39(1)).
- Cross-examination on the points of conflict, including by video conference, is on a party's application (rule 39(2)).
- Every affidavit filed is in Form NCLT-7, while rule 34(4) names NCLT-6 for the verifying affidavit (rule 39(3)).
- Evidence withheld from an Inspector under Chapter XIV is barred unless the Bench allows it for recorded reasons (rule 40(1)).
- The other side must be given a chance to rebut additional evidence (rule 40(4)).
Read next
- Rules 41 to 43: reply, rejoinder and further evidence
- Rules 125 to 130: affidavits and Form NCLT-14
- Rule 34: general procedure and forms NCLT-1 to NCLT-6
- Rules 47, 52 and 135 to 139: witnesses and oath
Disclaimer: Based on the National Company Law Tribunal Rules, 2016 (G.S.R. 716(E)) as amended up to the National Company Law Tribunal (Amendment) Rules, 2020 (G.S.R. 80(E)), consulted on 3 October 2026. Later amendments, fees, forms, NCLT practice directions and the Companies Act, 2013 provisions referred to should be checked. This article is general information, not legal advice; check the official text before acting.