Drafting, Pleadings & Appearances PDF

# PROFESSIONAL PROGRAMME ## MODULE 1 - PAPER 3 ### Drafting, Pleadings and Appearances (Max Marks 100) ## SYLLABUS ### Objective To provide expert knowledge of drafting, documentation and advocacy techniques. ### Detailed Contents 1. **Judicial & Administrative framework**: Procedure; Jurisdi...

# PROFESSIONAL PROGRAMME ## MODULE 1 - PAPER 3 ### Drafting, Pleadings and Appearances (Max Marks 100) ## SYLLABUS ### Objective To provide expert knowledge of drafting, documentation and advocacy techniques. ### Detailed Contents 1. **Judicial & Administrative framework**: Procedure; Jurisdiction and Review; Revisions; Reference; Appellate forum. 2. **General Principles of Drafting and relevant Substantive Rules**: Drafting, Concept, General Principles and relevant substantive rules thereof; Drafting in simple language, nuances of drafting, common errors and its consequences like litigation, liability. Drafting policies, code of conduct, guidance note, waivers, releases, disclaimers, Basic Components of Deeds, Endorsements and Supplemental Deeds, Aids to Clarity and Accuracy, Legal Requirements and Implications; Supreme Court Rules and other guiding principles for drafting. 3. **Secretarial Practices & Drafting**: Principles relating to Drafting of various resolutions; Drafting of notices & Explanatory Statements; Preparation of Agenda for meetings; Drafting and recording of minutes. 4. **Drafting and Conveyancing relating to Various Deeds and Agreements**: Conveyancing in General, Object of Conveyancing- Drafting of Conveyancing agreements, wills, encumbrances and gift deeds. 5. **Drafting of agreements, documents and deeds**: Drafting of various Commercial Agreements, Guarantees, Counter Guarantees, Bank Guarantees, Outsourcing Agreements, Service Agreements, E-Contracts, Legal License, IPR Agreements; General and Special Power of Attorney; Pre-incorporation Contracts; Share Purchase Agreement; Shareholders Agreements and Other Agreements under the Companies Act, 2013; Drafting of Memorandum of Association and Articles of Associations; Drafting of Provisions for Entrenchment of Specified Provision of Articles; Joint Venture and Foreign Collaboration Agreement, Non-disclosure Agreements ; Drafting of Limited Liability Partnership Agreement, Drafting of Bye Laws for Societies; Drafting Replies to Regulatory Show Cause Notices; Review of critical business documents and press releases; Responding to proxy Advisory Reports, Drafting Response to Media Reports; Drafting and review of crisis communications, presenting complex legal subjects to simple business oriented language. 6. **Pleadings**: Pleadings in General; Object of Pleadings; Fundamental Rules of Pleadings; Civil: Plaint Structure; Description of Parties; Written Statements, Interlocutory Applications, Original Petition, Affidavit, Execution Petition and Memorandum of Appeal and Revision, Petition under Articles 226 and 32 of Constitution of India, Special Leave Petition; Criminal: Complaints, Criminal Miscellaneous Petition, Bail Application and Memorandum of Appeal and Revision; Drafting of Affidavit in Evidence; Arguments on Preliminary Submissions; Arguments on Merits; Legal Pleadings and Written Submissions, Application, Petitions, Revision Petitions, Notice of Motion, Witness, Improper Admission, Rejection, Appeal, Review, Suits, Undertakings, Indemnity Bonds, Writs, Legal Notices, Response to Legal Notices. 7. **Art of Writing Opinions**: Understanding facts of the case; case for opinion writing, Application of relevant Legal Provisions to the facts; Research on relevant case Laws; Discussion and Opinion writing. 8. **Appearances & Art of Advocacy**: Requisites for entering appearances; Appearing before Tribunals/ Quasi-judicial Bodies such as NCLT/ NCLAT/ / CCI/ TRAI/ Tax Authorities and Appellate Tribunals/ and authorities such as ROC/ RD/ RBI/ ED/Stock Exchange/ SEBI/ RERA; Art of advocacy. ## Case Laws, Case Studies & Practical Aspects # LESSON WISE SUMMARY ## DRAFTING, PLEADINGS AND APPEARANCES ### Lesson 1- Judicial and Administrative Framework Under the Constitution, the primary function of the legislature is to make law, that of the executive is to execute law and that of the judiciary is to enforce the law.In view of the multifarious activities of a welfare state, the legislature cannot work out all the details to fit the varying aspects of complex situations. It must necessarily delegate the working out of details to the executive or any other agency. Therefore, one of the most significant developments of the present century is the growth in the legislative powers of the executives. There is no such general power granted to the executive to make law, it only supplements the law under the authority of legislature. The objective of the lesson is to introduce the students regarding: * Legislative Functions of Administration * Types of Tribunals/Quasi-Judicial Bodies * Types of Courts * Procedural aspects of working of Civil Courts * Procedural aspects of working of Criminal Court * Appellate Forum * Reference, Review and Revisions under CPC ### Lesson 2- General Principles of Drafting and Relevant Substantive Rules Drafting may be defined as the synthesis of law and fact in a language form. The importance of the knowledge about drafting and conveyancing for the corporate executives has been felt particularly for the three reasons viz., obtaining legal consultations; for carrying out documentation departmentally and for interpretation of the documents. Knowledge of drafting and conveyancing for the corporate executives is also essential for doing documentation departmentally. An executive can make a better document with all facts known and judging the relevance and importance of all aspects to be covered therein. A number of documents are required to be studied and interpreted by the corporate executives. In India, in the absence of any legislation on conveyancing, it becomes imperative to have knowledge about the important rules of law of interpretation so as to put right language in the documents, give appropriate meaning to the words and phrases used therein, and incorporate the will and intention of the parties to the documents. It is expected that, at the end of this lesson, student will, inter- alia, be in a position to: * Drafting, its meaning * Conveyancing, its meaning * Drafting and Conveyancing: Distinguished * Distinction between Conveyance and Contract * General Principles of Drafting * Legal Implications and Requirements * Components of Deeds. ### Lesson 3- Secretarial Practice in Drafting Notice, Agenda and Minutes of Company’s meetings A company is an artificial judicial person created by law having its own distinct entity form and capable of entering into contracts. Though company is bestowed with the characteristic of separate legal entity but it cannot take decision on its own. It is capable of acting in its own name, entering into contracts. It is capable of owning and holding property in its own name, sue others and to be sued by others in its name. Despite all these powers, since it is not a natural person, it expresses its will or takes its decisions through natural persons i.e. directors or members. Members or directors of a company can exercise their powers and can bind the company only when they act as a body at a validly convened and held meeting. As a company secretary you need to guide the members on the conduct of affairs of the company and facilitate the convening of meetings and attend Board and Committee meetings and maintain minutes of these meetings. The objective of the lesson is to facilitate the students to acquaint with: * Collective decision making process in companies * Secretarial Standards- Introduction * Secretarial Standard on Board Meetings * Secretarial Standard on General Meetings * Important points to be remembered while drafting notice of Board Meeting * Practical Aspect of Drafting Resolutions and Minutes ### Lesson 4- Drafting and Conveyancing Relating to Various Deeds and Documents (I) An agreement which is enforceable at law is called a contract. Generally when a contract is reduced to writing, the document itself is called an agreement. A company has to execute countless commercial agreements and other contracts during the course of its business. It is very much desirable and useful to keep in view certain important points in regard to the drafting of contracts, particularly commercial and international trade contracts. There is no particular form prescribed for the drawing up of trade contracts, except that they must fulfil all the essential requirements of a valid contract under the law applicable to the contract. If the law requires any particular category of contracts to be in writing or to be registered, these formalities must be complied with. A contract may be hand written, type written or printed. It may be as brief or as detailed as the circumstances of a particular trade transaction demand. The purpose of the lesson is to familiarize the students with: * Drafting of Agreements * Important Points Regarding Drafting of Contracts * Commercial Agency Contracts * Guidelines for Entering into Foreign Collaboration Agreements * Arbitration Agreements * Hypothecation Agreement * Outsourcing Agreements ### Lesson 5- Drafting and Conveyancing Relating to Various Deeds and Documents (II) Wharton in his Law Lexicon (1953), page 784 defines a power of attorney as “a writing given and made by one person authorizing another, who, in such case, is called the attorney of the person (or donee of the power), appointing him to do any lawful act instead of that person, as to receive rents, debts, to make appearance and application in court, before an officer of registration and the like. It may be either general or special, i.e., to do all acts or to do some particular act”. A power of attorney is one of the documents which plays an important role in conveyancing. Granting a Power of Attorney is a legal process that involves the drafting of a document which assigns to another person the power to act as your legal representative. The objective of the lesson is to familiarize the students with: * Deeds of Power of Attorney * Promissory Note * Relinquishment Deed * Hire-Purchase Deeds * Family Settlement Deeds ### Lesson 6 - Drafting and Conveyancing Relating to Various Deeds and Documents (III) Property has, always, been on the fundamental elements of socio economic life of an individual. Transfer of Property means an act by which a living person conveys property in present, or in future, to one or more other living persons, or to himself and one or more other living persons and “to transfer property” is to perform such an акт. The law relating to transfer of property is governed by the Transfer of Property Act, 1882. A mortgage is a transfer of interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of a loan, existing or future debt or the performance of an acknowledgement, which may give rise to pecuniary liabilities. Lease is a contract between lessor and lessee for the fixed term for the use on hire of a specific asset selected by lessee. Lessor retains ownership of the assets and lessee has possession and use of the asset on payment of specified rental over a period. It is a sort of contractual arrangement between the two parties whereby one acquires the right to use the property called “lessee” and the other who allows the former the right to use his owned property, called the “lessor”. Thus, lease is a contractual arrangement, it originates from a contract between the lessor and lessee and is regulated by the terms, conditions and covenants of such contract. The objective of the lesson is to introduce the students regarding: * Drafting of Deed of Sale of Immovable Property * Drafting of Deed of Mortgage * License * Form of Deed of License * Essential Points to be observed for Drafting of Lease Documents * Drafting of a Lease Documents ### Lesson 7- Drafting and Conveyancing Relating to Various Deeds and Agreements - IV An assignment is a form of transfer of property and it is commonly used to refer the transfer of an actionable claim or a debt or any beneficial interest in movable property. The deed of assignment stipulates what kind of rights have been assigned. An important aspect of intellectual property laws deals with assignment agreements. An assignment agreement is an intellectual property (IP) transaction that deals with the ownership and disposition of intellectual property rights as well as with the control over the use of or access to intellectual property. An instrument of trust is drafted either as a deed poll or as a regular deed between the author of trust and the trustee. Where trustees are strangers and a transfer of property is involved, it is better to draft the deed as a deed between the author of trust and the trustees. Where the author is to be the trustee himself and the deed requires a mere declaration of trust, it is drafted as a deed poll. It is expected that, at the end of this lesson, student will, inter- alia, be in a position to: * Deeds of Assignment * Assignment of Patents * Assignment of Trade Marks * Assignment of Copyrights * Assignment of Business and Goodwill * Partnership Deeds * Trust Deeds ### Lesson 8-Drafting of Agreements under the Companies Act Generally Promoter of a company is a person who does the necessary preliminary work in connection with the formation and the establishing of the company. It is Promoters’ only who conceives an idea, develops it, formulates a scheme or project and takes all the necessary steps for the formation of a company to implement the project or the scheme. Memorandum of association of the company is the fundamental formation document. It is the constitution and charter of the company. It contains the basic conditions on the strength of which the company is incorporated. Articles are rules and regulations for management of internal affairs of the company. It constitutes a contract between the company and its members and members inter se. It is framed with the object of carrying out aims and objects of the company as contained in Memorandum. Shareholders’ agreements (SHA) are the result of mutual understanding among the shareholders of a company to which, the company generally becomes a consenting party. Such agreements are specifically drafted to provide specific rights, impose definite restrictions over and above those provided by the Companies Act. The objective of the lesson is to facilitate the students to acquaint with: * Promoters’ Contract-Pre- Incorporating Contracts * Drafting of Memorandum * Drafting of Articles * Underwriting Contract * Shareholders Agreement ### Lesson 9 –Pleadings Order 6, Rule 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement. The object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. Pleadings are, therefore, the foundation of any litigation, and must be very carefully drafted. It is expected that, at the end of this lesson, student will, inter- alia, be in a position to: * Fundamental Rules of Pleading * Plaint Structure * Description of the Parties * Written Statement * Requirement of Written Statement * How to draft a Written Statement * Interlocutory Application * Affidavit * Execution Petition * Memorandum of Appeal and Revision * Revision * Various types of suits under C.P.C * Complaint & Bail Application * Application under Section 125 of Cr.P.C * First Information Report ### Lesson 10 - Art of Writing Opinions A legal opinion is a written statement by a judicial officer or a legal expert based on giver’s professional understanding of a particular aspect of any matter based on legal principles. A person might want to know the correct legal position on a matter of interest or the likelihood of his winning a case if he initiates legal proceedings based on the information that he has supplied to the expert. Lawyers may also from time to time be asked to render a legal opinion to their own clients. Example, a client (querist) may request a tax opinion from its counsel to provide a basis for the avoidance of penalties, if the tax aspects of a transaction are later challenged. The term “opinion” can be defined in a variety of ways, depending upon the context in which it is used. In business transactions, a legal opinion regarding a particular issue is customarily presented in an opinion letter and is widely understood to express the opinion giver’s professional understanding of the legal principles generally applicable to a specific transaction or applicable to a particular aspect of the transaction. Many commentators view an opinion letter as a document that provides the opinion recipient with the opinion giver’s professional judgment about how the highest court of the jurisdiction whose law is being addressed would resolve the issues covered by the opinion letter on the date of the opinion. It is widely recognized that neither an opinion letter nor any particular legal opinion expressed in it is intended to be or is a guarantee of a particular outcome. Example: ABC Limited intends to take a legal action against XYZ Limited on the ground of breach of contract. There are two different interpretations of the concerned clause. ABC Limited may take legal opinion of a Professional. ### Lesson 11- Appearances and Art of Advocacy Quasi-Judicial bodies/Tribunals have power similar to Courts which decides on cases in specific areas. They are called as Quasi-Judicial because they do not have full powers as that of the Court. A Company Secretary has been recognized under various Acts to appear as an authorized representative before various tribunals/ quasi-judicial bodies such as National Company Law Tribunal (NCLT), Competition Commission of India (CCI), Telecom Regulatory Authority of India (TRAI) National Company Law Appellate Tribunal (NCLAT), Securities Appellate Tribunal etc. Company Secretaries act as an authorized representative before various Tribunals/quasi-judicial bodies. It is necessary for them to learn art of advocacy or court craft for effective delivery of results to their clients when they act as an authorized representative before any tribunal or quasi-judicial body. The objective of the lesson is to facilitate the students to acquaint with: * Right to legal representation * Appellate authorities under the Companies Act, 2013 * Appellate authorities under TRAI Act, 1997 * Appellate authorities under SEBI Act, 1992 * Appellate authorities under the Competition Act, 2002 * Drafting of Affidavit in Evidence * Arguments on Preliminary Submissions * Arguments on Merits * Legal Pleadings and Written Submissions * Dress Code * Etiquettes * Court Craft # GLOSSARY **Actionable claim** - “Actionable claim” means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accuring, conditional or contingent. **Shares** - The shares or debentures or other interest of any member in a company shall be movable property transferable in the manner provided by the articles of the company. **Deed of Assignment** - A deed of assignment is usually called an assignment thereof. **Promissory Note** - An instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. **Power of Attorney** - An instrument empowering a specified person to act for and in the name of the person executing it. It is always kept by the attorney. **Immovable Property** - As per the Registration Act, 1908 Immovable Property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass. **Lease** - Lease includes a counterpart, kabuliyat, and undertaking to cultivate or occupy, and an agreement to lease. **Representative** - Representative includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot **Arbitration** - It is a form of alternative dispute resolution (ADR), is a way to resolve disputes outside the judiciary courts. The dispute will be decided by one or more persons (the 'arbitrators', 'arbiters' or 'arbitral tribunal'), which renders the 'arbitration award'. An arbitration decision or award is legally binding on both sides and enforceable in the courts, unless all parties stipulate that the arbitration process and decision are non-binding. **Collaboration** - Collaboration (from Latin com- "with" + laborare "to labor", "to work") is the process of two or more people, entities or organizations working together to complete a task or achieve a goal. Collaboration is similar to cooperation. Most collaboration requires leadership, although the form of leadership can be social within a decentralized and egalitarian group. **Agency and Del Credere Agent** - A del credere agent is one who, for an extra remuneration undertakes the liability to guarantee the due performance of the contract by the buyer. By reason of his charging a del credere commission he assumes responsibility for the solvency and performance of the contract by the vendee and thus indemnifies his principal against loss. **Hypothecation** - means a charge in or upon any movable property, existing or future, created by a borrower in favour of a secured creditor without delivery of possession of the movable property to such creditor, as a security for financial assistance and includes floating charge and crystallization of such charge into fixed charge on movable property; (Section 2(n) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002) **Electronic Contract (E-Contract)** - E-contract (contract that is not paper based but rather in electronic form) is any kind of contract formed in the course of e-commerce by the interaction of two or more individuals using electronic means, such as e-mail, the interaction of an individual with an electronic agent, such as a computer program, or the interaction of at least two electronic agents that are programmed to recognize the existence of a contract. Traditional contract principles and remedies also apply to e-contracts. This is also known as electronic contract. **Will and Testator** - “WILL” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. (Section 2(n) of the Indian Succession Act,1925). Testator is a person who has made a will or given a legacy. **Gift** - ‘Gift’ is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. (Section 122 of the Transfer of Property Act, 1882) **Click-wrap or Web-wrap Agreements** - One of the E-Contract, these are the agreements which we generally come across while surfing internet such as “I AGREE” to the terms or “I DISAGREE” to the above conditions. A click-wrap agreement is mostly found as part of the installation process of software packages. It is also called a “click through” agreement or click-wrap license. **Agreement to Sell** - When a seller agrees to hand goods that they own over to the buyer in exchange for money, this is called a contract of sale. **Memorandum of Association** - It represents the charter of a Company, regulates the company's external affairs and contains the fundamental conditions under which the company is allowed to operate. **Articles of Association** - It defines the responsibilities of the directors, the kind of business to be undertaken, and the means by which the shareholders exert control over the board of directors. **Amalgamation** - An amalgamation is a combination of two or more companies into a new entity. **Underwriting** - the process through which an individual or institution takes on financial risk for a fee. The term underwriter originated from the practice of having each risk-taker write their name under the total amount of risk they were willing to accept for a specified premium. **Slump Sale** - As per section 2(42C) of Income -tax Act 1961, 'slump sale' means the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sales. # OTHER REFERENCES (INCLUDING WEBSITES/VIDEO LINKS) - www.icsi.edu - https://www.icsi.edu/media/webmodules/GN_on_Meetings_of_BOD_3122020.pdf - https://www.icsi.edu/media/webmodules/GN_on_General_Meetings_31122020.pdf - https://www.icsi.edu/ssb/home/ - https://www.mca.gov.in/content/mca/global/en/acts-rules/ebooks.html - https://www.indiacode.nic.in # LIST OF FURTHER READINGS - Drafting, Conveyancing and Pleadings (1982); 2nd Ed., N.M. Tripathi (P.) Arvind G. Kothari Ltd., Bombay. - Draftsman (1979); 14th Ed. Rev. by R.W. Ramage, pp. 2 to 161, 228 to 235, 476 to 509, Butterworths, London. - The Law of Pleadings in India (1987); 14th Ed. Rev. by Justice K.N. Goyal, etc. Eastern Law House, Calcutta. # TEST YOURSELF (These are meant for recapitulation only. Answer to these questions are not to be submitted for evaluation.) 1. Define ‘patent’, ‘trademark’, ‘copyright’, ‘goodwill’ and ‘assignment’. 2. Explain the common purposes for which legal opinion are sought. 3. The primary purpose of a legal opinion is communication of advice to a client. Comment. 4. Enumerate the types of a legal opinion. 5. Explain what are the things to be kept in mind while preparing for opinion letter? 6. Draft a specimen of writ petition before the high court. 7. Define ‘affidavit’. What rules and guiding principles should be followed while drawing up an affidavit? 8. Your friend has been arrested on a mere suspicion. Draft a bail application to get him released on bail. # OTHER REFERENCES (INCLUDING WEBSITES/VIDEO LINKS) - https://www.icsi.edu/home/cs/ - https://www.icsi.edu/student/academic-portal/student-company-secretary/ # LIST OF FURTHER READINGS - The Indian Draftsman; Guide to Legal Drafting (1995); 10th Ed. Rev. by Nitin Khanna & A.C. Moitra, the University Book Agency, Allahabad. Vol. I & II. - Drafting Corporate & Commercial Agreements (2005); 1st Ed., Universal Law Publishing Co., Delhi. - Commerical Drafting & Conveyancing, 1988 Ed.; Bharat Law House, New Delhi. # TEST YOURSELF (These are meant for recapitulation only. Answer to these questions are not to be submitted for evaluation.) 1. Define ‘patent’, ‘trademark’, ‘copyright’, ‘goodwill’ and ‘assignment’. 2. Explain the common purposes for which legal opinion are sought. 3. The primary purpose of a legal opinion is communication of advice to a client. Comment. 4. Enumerate the types of a legal opinion. 5. Explain what are the things to be kept in mind while preparing for opinion letter? 6. Draft a specimen of writ petition before the high court. 7. Define ‘affidavit’. What rules and guiding principles should be followed while drawing up an affidavit? 8. Your friend has been arrested on a mere suspicion. Draft a bail application to get him released on bail. # OTHER REFERENCES (INCLUDING WEBSITES/VIDEO LINKS) - https://www.icsi.edu/home/cs/ - https://www.icsi.edu/student/academic-portal/student-company-secretary/ # LIST OF FURTHER READINGS - The Indian Draftsman; Guide to Legal Drafting (1995); 10th Ed. Rev. by Nitin Khanna & A.C. Moitra, the University Book Agency, Allahabad. Vol. I & II. - Drafting Corporate & Commercial Agreements (2005); 1st Ed., Universal Law Publishing Co., Delhi. - Commerical Drafting & Conveyancing, 1988 Ed.; Bharat Law House, New Delhi.